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'I'hc  C()ni])ani<>n 

to  this  \-olunK'  is 

SCllOL'l 

MR   ON 

WILLS 

I'm  KM  l-'.i 

)iri()\  S5. 

50   NET. 

Toj^ctlicr,  the) 

constitut 

e  a  com  I 

ilete 

work  on  the 

American 

Law  of 

Ad- 

ministration. 

A  TREATISE 


LAW  OF 


EXECUTORS  AND  ADMINISTRATORS 


BY 

JAMES   SCHOULER,   LL.   D., 

Propmsor  in  the  Boston  University  Law  School,  and  Author  of  Trbatises 

ON  "The  Law  of  Wills,"  "  Domestic  Relations,"  "  Bailments," 

AND  "  Personal  Property  " 


THIRD    EDITION 


BOSTON : 

BOSTON  BOOK  COMPANY 
1901 


\90\ 


Copyright,  1883, 
Bv  JAMES  SCHOULER. 


Copyright,   i88g, 
Bv  JAMES   SCHOULER. 


Copyright,  igoi, 
By  JAMES   SCHOULER. 


ii.ECTtoTTrm  A!«r>  rnixxm  nv 


NOTE  TO  THIRD  EDITION. 


The  author  has  made  use  of  the  latest  English  and  Amer- 
ican decisions,  in  the  present  edition,  and  has  personally  revised 
the  entire  volume.  He  avails  himself  of  this  opportunity  to 
thank  his  fellow-members  of  the  profession  for  their  generous 
appreciation  of  this  work,  as  well  as  of  the  companion  volume 
on  the  law  of  Wills,  which  he  issued  subsequently  to  the  first 
edition  of  the  present  treatise,  and  which  has  passed  to  a  third 
edition  almost  simultaneously  with  this  volume. 

J.  S. 

January  i,  1901. 


PREFACE. 


The  present  work  completes  an  investigation  of  the  law  of 
Personal  Property,  whose  results  the  writer  commenced  pub- 
lishing ten  years  ago  ;  an  investigation  pursued  far  beyond  the 
limits  originally  proposed,  but  not  without  direct  encouragement 
from  his  professional  brethren. 

Four  volumes  properly  comprehend  the  main  subject,  as 
follows  : 

1.  The  Nature,  General  Incidents,  and   Leading  Classes  of 

Personal  Property.  Schouler  on  Personal  Prop- 
erty, Vol.  I. 

2.  Title  to  Personal   Property  by  Original  Acquisition,  Gift 

and  Sale.  Schouler  on  Personal  Property,  Vol.  II.  ; 
or,  as  it  might  well  be  styled,  Schouler  on  Gifts  and 
Sales. 

3.  Title  to  Personal   Property  by  Bailment.      Schouler  on 

Bailments,  including  Carriers,  Innkeepers  and 
Pledge. 

4.  Title  to  Personal  Property  by  Death.     Schouler  on  Ex- 

ecutors and  Administrators. 

Elementary  writers  discourse  further  of  Title  to  Personal 
Property  by  Judgment  and  Insolvency  ;  but  the  law  pertaining 
to  these  subjects  is  greatly  controlled  at  this  day  by  statutes  of 
local  application,  and,  besides,  may  be  found  amply  discussed  in 
text-books  already  familiar  to  the  practitioner. 

A  practical  experience  in  the  special  branch  of  law  which 
pertains  to  executors  and  administrators  has  been  found  service- 
able to  the  writer  in  preparing  the  present  volume.  The  latest 
published  reports,  English  and  American,  to  the  close  of  the 
year  1882,  have  been  personally  consulted  by  him,  and  cited  so 

V 


\n  PREFACE. 

far  as  seemed  desirable.  The  American  decisions,  reported  ni 
the  United  States  Digest,  have  been  carefully  studied.  What- 
ever other  assistance  has  been  received,  from  text-books,  and 
especially  from  the  elaborate  English  work  of  Williams,  on  this 
subjcxrt.  is  duly  acknowledged  in  the  foot-notes."  Without  in- 
stituting comparisons  with  other  text-writers  on  this  important 
branch  of  the  law,  the  author  may  fairly  claim,  as  he  submits, 
that  no  work  of  a  single  volume  is  already  before  the  profes- 
sional public,  i^resenting  historically  and  logically  the  whole 
English  and  American  law  of  executors  and  administrators, 
with  a  due  regard  for  the  modern  practical  needs  of  such  fidu- 
ciaries and  their  legal  advisers,  separating  the  main  subject  from 
those  more  abstruse  topics  which  pertain  to  Wills  and  Testa- 
mentary Trusts,  and  giving  to  the  excellent  points  of  our  Amer- 
ican probate  practice  of  this  day  the  prominence  justly  deserved. 
He  trusts,  therefore,  that  the  present  work  will  be  found  to 
supply  an  actual  want,  in  a  genuine  sense. 

JAMES  SCHOULER. 

HosTo.s',  March  31,  1S83. 

'  Williams  on  Executors  and  Admini.strators,  7th  English  Edition  (with  Per- 
kins's .\nierican  Notes),  is  cited  in  the  present  work. 

Schouler  on  Wills  (a  companion  volume),  was  subsequently  published. 


TABLE  OF  CONTENTS. 


PART  I. 

INTRODUCTORY    CHAPTER. 


PAGE 

1.  Estates  of  Deceased  Persons  ;  how  Settled  in  Modern  Practice;  The- 

ory of  Judicial  Supervision i 

la.  Death  Fundamental  to  Jurisdiction;  Survivorship 2 

2.  Settlement  of  Estates,  Testate  or  Intestate ;  Executors  and  Adminis- 

trators, and  their  Functions  ;  Administration 2 

3.  Whether  there  may  be  a  Will  without  an  Executor 5 

4.  Devise    and   Bequest  or   Legacy  distinguished ;  whether  a  Will  can 

operate  upon  Property  afterwards  acquired 5 

5.  Personal  Property  is  administered;  whether  Real   Estate  can  be  ap- 

plied           7 

6.  Succession  in  the  Civil   Law ;  as  distinguished  from  Administration         8 

7.  Testacy  preferred  to  Intestacy  in  Civil   and  Common  Law;  Former 

Abuses  in  English  Law  where  Intestate  Estates  were  administered       10 

8.  Wills  of  Real  and  Personal  Property,  whether  distinguishable  of  Right ; 

Modern  Statute  of  Wills 12 

9.  Ancient  Doctrine  of  the  Reasonable   Parts  of  Widow  and  Children ; 

Wills  of  Personal  Property  affected 13 

10.  Jurisdiction  in  the  Grant  of  Letters  Testamentary  and  Administra- 

tion; English  Ecclesiastical  Courts 14 

11,  12.  Probate  Jurisdiction  in  the  United  States 15,  16 

13.  The  Subject  continued;  Probate  Procedure  in  the  United  States  .     .       17 

14.  Modern  Probate  Jurisdiction  in  England ;  New  Court  of  Probate  Act.       19 

15.  Conflict    of    Laws  in  Wills   and    Administration;  General    Rule  of 

Comity;  Authority  of  Representative  is  Local;  Rule  as  to  Foreign 
Creditors 21 

16.  Conflict  of  Laws;  Comity  Favors  as  to    Payment  of  Legacies   and 

Distribution 24 

17.  Conflict  of  Laws;   Rule  as  to  Excmtion  and  Validity  of  Will  ...       26 

18.  Conflict  of   Laws;  Rule  as  to  Accountability  of  Executor  or  Admin- 

istrator    27 

19.  Conflict  of  Laws  ;   Personal  and    Real  Estate  contrasted;   Situs  pre- 

vails as  to  Real 27 

20.  Conflict  of  Laws  ;   (General  Rules  varied  by  Treaty,  Statute,  etc.    .     .       28 

vii 


\iii  TABLE    OI-     CONTENTS. 

§  ri.  Last  Domicile:  what  this  is ;  Residence,  Inhabitancy 30 

22.  Last  Domicile  ;  applied  to  the  Subject  of  Administration      ....  32 

23.  Last  Domicile  ;  Death  while  on  Transit,  etc 23 

22a.  Local  Appointment  to  Prosecute  a  Statutory  Action  for  Ton  Caus- 
ing Death 34 

24.  Locality  of  Personalty  or   Bona  Nolabilia  may  confer    Jurisdiction, 

aside  from  Domicile  ;  Questions  of  Double  Jurisdiction  ....       34 

25.  The  Subject  continued  :  whether  Assets  brought  in  may  confer  Juris- 

diction     37 

25J.  The  Subject  continued;  Suits  for  Assets  owing  by  a  Corporation    .       38 

26.  The  Subject  continued;   Right  of  Action  created  by  Local   Statute 

confers  no  External  Jurisdiction 38 

27.  Whether  Locality  of  a  Decedent's   Real  Estate  may  confer  Juris- 

diction      39 

2S.  Constitutional  Points  affecting  Administration  in  the  United  States  .  40 
29.  Probate  Jurisdiction  exercised  by  each  State  separately ;  United  States 

Courts  should  not  interfere 40 

29<z.  Interested  Parties  only  are  regarded  in  Probate  Procedure      ...  41 


PART  II. 

APPOINTMENT    AND    QUALIFICATION    OF     EXECUTORS    AND 
ADMINISTRATORS. 


CHAPTER  L 

APPOINTMENT  OF  EXECUTORS. 

30.  Modern  Definition  of  Executor 42 

31.  Designation  of  Executor  under  a  Will ;  the  Trust  maybe  absolute 

or  qualified 42 

32.  Who  are  capable  of  becoming  Executors;  Rule  as  to  Married  Women, 

Infants,  Corporations,  Aliens,  etc 43 

33.  Who  are  capable  of  becoming  Executors;  Rule  as  to  Criminals,  Di.s- 

solute  Persons,  Insolvents,  etc 45 

34.  Mi.scellaneous  Disabilities  for  the  Office 49 

35.  Express  Appointment  of  Executor  by  Testament 49 

36.  Constructive  Apjxjintment  by  designating  Functions,  etc. ;  Executor 

according  to  the  Tenor 49 

37.  The  same  Subject ;  Mere  Designation  of  Trustees,  Legatees,  etc.,  In- 

sufficient for  Executorship 50 

38.  The  same  Subject ;  Identifying  the  Executor 52 

39.  The  same  Subject;  Suggested  Executor ;  Adviser,  etc 52 

40.  The  same    Subject;    Conditional    Appointment;  Substitution;    ("o- 


executors,  etc. 


52 


TABLE    OF    CONTENTS.  IX 

HAGE 

§41.   Testator's  Delegation  of  the  Power  to  name  an  Executor  or  Co-exec- 
utor     54 

42.  Limited  or  Conditional  Executorshi]) 55 

43.  Whether  the  Executorship  passes  to  an  Executor's  Representatives       57 

44.  Acceptance  and  Refusal  of  the  Executorship ;  Citation  of  the  Person 

named,  etc 58 

45.  The  same  Subject  ;   Death  equivalent  to  a  Renunciation 60 

46.  The  same  Subject ;    Refusal  of  Record;   Constructive  Refusal  or  Ac- 

ceptance       60 

47.  The  same  Subject ;   Couslructivc  Acceptance  or  Refusal  not  favored 

in  Modern  Probate  Practice 63 

48.  Executor's   Right  to  renounce   not  to  be  exercised   corruptly,  nor  for 

Sinister  Objects 64 

49.  Whether  an  Executor  renouncing  may  exercise  a  Power 65 

50.  Retraction  after  a  Renunciation;   Subsequent   Appointment   of  the 

Executor 65 

51.  Renunciation  where  Several  Executors  are  named 67 

52.  Executors,  how  appointed  by  the  Court ;  Letters  Testamentary     .     .       68 

CHAPTER  II. 

PROBATE    OF    THE    WILL. 

§  53.  Duty  of  producing  the  Will;   Fundamental  Importance  of  determin- 
ing Testacy  or  Intestacy,  etc 69 

54.  Procedure  against    Persons  suspected  of  secreting,   destroying,  etc., 

the  Will 70 

55.  Death  of  Testator;  its  Effect  upon  his  Will 71 

56.  How  soon  after  the  Testator's  Death  should  the  Will   be  presented 

for  Probate 73 

57.  Primary  Probate   Jurisdiction   depends  upon   Last   Domicile  of  De- 

ceased ;   Foreign  Wills 74 

58.  Testamentary  Papers  Ineffectual  until  after  Proper  Probate;   Probate 

relates  back 75 

59.  What   Testamentary    Papers    require    Probate ;   Wills   of   Real    and 

Personal  Property 76 

60.  Testamentary  Papers  requiring  a  Probate ;  X'arious  Kinds  stated ;  Wills, 

Codicils,  etc 78 

61.  Testamentary  Papers  requiring  a  Probate  ;   Secret  \\'ills  ;    I-^xtraneous 

Documents  referred  to 79 

62.  Instruments  which  do  not  purport  to  be  Testamentary 80 

63.  Modern  Laxity  as  to  Papers  of  a  Testamentary  Character  corrected 

by  Statutes  requiring  Attestation,  etc 80 

64.  By  whom  the  Will  should  be  propounded  for  Piobatc 84 

65.  Petition    and    Proceedings   for    Probate,    etc.  ;   Probate   in    Common 

Form  and  Probate  in  Solemn  Form S5 

66.  67.  Probate  of  Will  in  Common  Form 86,  88 


X  TABLE    OK    CONTENTS. 

PAGE 

§  68.  The  Subject   continued;  American  Statutes  as  to  Non-Contentious 

Business S9 

69.  Probate  of  Will  in  Solemn  Form ;  English  Practice 90 

70.  I'robate  of  Will  in  Solemn  Form  ;  American  Practice 92 

71.  Contest  over  Conflicting  Testamentary  Papers 95 

72.  Agreement  of  Parties  in  Interest  to  conform  to  an  Invalid  Will    .     .  95 

73.  The  Proof  Needful  to  establish  a  Will ;   Proceedings  at  the  Hearing 

for  Probate 95 

74.  Proof  of  the  Will;    Instrument   to   be  in  Writing,  and  signed  by  the 

Testator 98 

75.  Signing  by  the  Testator ;   Subject  continued  ;    Publication,  etc.      .     .  100 

76.  Proof  of  the  Will ;  Subscribing  Witnesses loi 

77.  Proof  of  the  Will;  Mode  of  Attestation  by  Witnesses 104 

78.  Proof  of  the  Will ;   Atte.station  Clause 104 

79.  Proof  of  the  Will ;   Suitable  Testamentary  Condition  on  the   Part  of 

the  Testator 105 

So.  Proof  of  the  Will;  Suitable  T  e.st  anient  a  ry  Condition  as  respects  Le- 
gal Capacity 107 

81.  Proof  of  the  Will ;  Testimony  at  the  Hearing 108 

82.  Revocation  or  Alteration  of  Wills;  Codicils;  New  Wills,  etc.  .     .     .  109 

83.  Rule  of  Escrow  not  applicable  to  Wills in 

84.  Lo.st  Wills  ;   Republication  of  Will ;   Informal  Alterations,  etc.      .     .  112 

85.  Probate  in  Whole  or  in  Part 114 

86.  Probate  in  Fac-Simile,  or  by  Translation 116 

87.  Probate  of  Two  or  More  Testamentary  Papers;  Grant  to  Executors  116 

88.  Decree  of  Probate  entered ;   Public  Custody  of  the  Will 117 

89.  Nuncupative  Wills 117 

Sqa.  No  Injunction;  Effect  of  Probate 118 

CHAPTER  III. 

Al'I'OINTMK.NT    OK    ORIGINAL    AM)    CENF.RAL    ADMIN  I.STRATOKS. 

§  90.  Original  and  General   Administration  granted  wherever  there  is  no 

Executor,  etc. ;  Origin  of  this  Jurisdiction 1 20 

91.  Intestacy   Fundamental   to   the  Grant   of    General    Administration; 

Death  and  Domicile  or  Lxjcal  Assets 121 

92.  Presumption  favors  Jurisdiction  where  the  (Jrant  is  conferred;  but 

the  Fundamental  Facts  must  exist 122 

93.  Value  or  Kind  of  Estate,  whether  Fundamental 123 

94.  Time  within  which  Original  Administration  must  be  applied  for    .     .  124 

95.  No  Original  and  General  Administration  granted  while  Other  Letters 

are  in  Full  Force,  etc. ;    Double  Jurisdiction 125 

'/j.  Judicial  Inquiry  into  the  Facts  E.ssential  to  the  Grant  of  Admini-stra- 

tion 125 

97.  Person.s  to  whom  General  Administration  is  granted 126 

98.  Husband's    Right   to    .Administer  upon   the   Estate  of   his   Deceased 


Wife 


127 


TABLE    OF    CONTENTS.  XI 

PAGF. 

§     99.  100.  Widow's  Right  to  Administer  upon  the  estate  of  her  Deceased 

Husband i;,o,  131 

loi.   Right  of  the  Next  of  Kin  to  Administer ;   Consangumiiy     ....  132 

102.  The  same  Subject;  How  to  ascertain  the  Preference  among  Kindred  133 

103.  The  same  Subject ;   Preferences  among  Kindred  of  the  same  Degree, 

etc 135 

104.  Leading   considerations  which  affect    the  Choice  among    Persons 

equally  entitled  by  Law  to  Administer ;   Suitableness,  etc.  .     .     .  137 

105.  The  same  Subject;   Suitableness  as  between  Males  and  Females,  the 

Elder  and  Younger,  etc 139 

106.  Suitableness  as  concerns  Married  Woman ;  Husband's  Administra- 

tion in  Wife's  Right 140 

107.  Unsuitableness  as  to  Insane   Persons;    Infants;   Corporations,  etc.   .  141 

loS.  Illegitimate  Children  and  their  Right  to  Administer 142 

109.  Whether  Non-residence  disqualifies 142 

no.  Other  considerations  for  determining  the  Choice  of  Administrator  .  143 

III.  Statute  Order  among  Next  of  Kin  stated 144 

11:;.  Renunciation  or  Non-Appearance  of  those  entitled  by  Preference  to 

Administer;  Citation 144 

1 13.  Nomination  of  a  Third  Person  by  the  Person  entitled  to  Administer  146 

114.  Unsuitableness  of  a  Judge  of  Probate,  Corporation,  etc.,  for  the  Ap- 

pointment        148 

1 15.  Right  of  Creditor  or  Stranger  to  be  appointed  in  Default  of  Kindred, 

etc 149 

116.  Public  Administrator  or  other  Official  appointed  in  Certain  Cases  152 

117.  English  Rule  in  Cases  Analogous  to  Those  which  call  for  a  Pubhc 

Administrator 157 

118.  Method  and  Form  of  granting  Letters  of  Administration     ....  158 

119.  Administrator  as  Such  must  be  appointed ;  Credentials  of  Authority  161 

120.  In  what  Cases  Administration  may  be  dispensed  with 162 

CHAPTER  IV. 

APPOINTMENT  OF  ADMINISTRATORS  NOT  ORIGINAL  .\ND  GENERAL. 

§   121.  Administration  is  not  always  Original  or  General 166 

122.  Administration  with  the  Will  annexed  {ctim  tcsiamciito  ainicxo) ;  W  hen 

granted  and  how 166 

123.  Administration  with  the  Will  annexed;  Functions  of  the  Office  .     .  167 

1 24.  Administration  with  the  Will  annexed ;  to  whom  granted ;  Residuary 

Legatee 168 

125.  Administration  with  the  Will  annexed;  Appointment  of  Next  of  Kin  i6q 

126.  Administration  with  the  Will  annexed ;    Surviving  Spouse's   Right 

considered 169 

127.  Administration  with  the  Will  annexed;   Executor's  Rights       .     .      .  170 

1 28.  Administration  of  Personalty  not  already  administered  {de  boni.\  iii»i] ; 

when  granted,  etc 171 


Xll  TABLE    OK    CONTENTS. 

FA(.E 

§   1 29.  Administration  (/t- /^<w/> //<w  .-  to  wiiom  committed 175 

130.  Death  of  survi\ang  Spouse  pending  Settlement  of  Deceased  Spouse's 

Estate 176 

131.  Administration  (AwW/j  «i)y/ ;   .Miscellaneous  Points 177 

132.  Temporary'  Administration;  Administration  during  Minority  {duraiUc 

tniinvi'  (date) 178 

133.  Temporary  Administration  ;  i\i\\\\\\\\i,\.x.)\\o\\  dui-antc  absentia  .     .     .  179 

134.  Other  Temporary  Administrations;  Administration /<?«flV«/^///t.',  etc.  182 

135.  Special  Administration,  for  Limited  and  Special  Purposes,  etc.    .     .  184 

CHAPTER  V. 

THE  BONDS  OK  KXFX'UTORS  AND  ADMIN  ISTK.\TORS. 

§   136.  Necessity  of  Qualifying  before  Appointment;   Security  required  by 

the  Court 189 

137.  Bonds:   When  and  liow  required  from  an  Executor 189 

1 38.  Bonds  required  from  an  Executor ;   Residuary  Legatee's  liontl     .  192 

139.  Bonds  required  from  an  Administrator ;  English  Rule 193 

140.  Bonds  required  from  an  Administrator ;  American  Practice  196 

141.  Probate  Bonds;   How  Taken 198 

142.  Probate   Bonds;   Irregularities,    etc.,  attending  Execution,  How   far 

Available 199 

143.  Whether  a  Probate  Bond  may  bind  as  a  Common-law  Bond  .  202 

144.  Sufficiency  of  Probate  Bonds,  as  to  the  Security  and  the  Parties  of- 

fered       202 

145.  Co-Executors  and  Co-Administrators ;  Joint  and  Separate  Bonds  203 

146.  Probate    Bond;   What    Property  is    covered;   What   Functions  in- 

cluded, etc 204 

147.  Release  or  Discharge  of  Sureties 207 

148.  New  or  Additional  Bonds;  when  and  how  required 208 

149.  Lost  and  Missing  Probate  Bonds 210 

CHAPTER  VL 

API'KAI.  ;     KK.VOCATION  ;    NEW   A  I'l'OINl'M  ENT,   ETC. 

§   150,  151.  Appeal  from  Decree  of  Probate  Court ;  Mandamus,  etc.    .     211,  213 

152.  Revocation  by  Proceedings  in  the  Probate  Court 214 

J  53.  Grounds  upon  which  Revocation  is  Proper 2 1  () 

154.  Removal  of  Executor  or  Administrator 219 

155.  Procedure  in  Case  of  Revocation  of  Appointment  or  Removal  from 

Office 221 

156.  Resignation  of  Executor  or  Administrator 223 

157.  Jurisdiction,  in   general,  as  to  Revocation,  Removal,  and  Accejning 

a  Resignation 224 


TABI.K    OF    CONTENTS.  Mil 

lAGB 

§    158.  Naluial  Termination  of  an  Executor's  01  Administrator's  Authority  225 

159.  Delegation  of  Authority  does  not  relieve;  but  Supersedure  does  225 

160.  The  Effect  of  Probate  Decrees ;  Collateral  Attack,  etc 226 

161.  Effect  of  an  Appeal  from  Decree 231 

CHAPTER   VII. 

FOREIGN   AND  ANCILLARY  APPOINTMENTS. 

§   162.  The  Subject  of  P^oreign  and  Ancillary  Appointments  considered  fre- 
quently in  the  United  States  but  not  in  England 233 

163.  What  is  Ancillary  Administration 233 

164.  Letters  Testamentary  or  of  Administration  have  no  Extra-territorial 

Force 234 

165.  Each  Sovereignty  competent  to  confer  a  Probate  authority  within  its 

own  Jurisdiction     .     .     .     , 235 

166.  Local  Sovereignty  recognizes  Limitations  grounded  in  Comity,  Good 

Policy,  and  Natural  Justice 236 

167.  Administration  in  the  last  Domicile  is  the  Principal;  other  Admin- 

istrations are  Ancillary 236 

168.  Principal  Letters  need  not  precede  the  Ancillary 237 

169.  Foreign  and  Domestic  Probate  and  Letters  Testamentary;   English 

Doctrine 238 

170.  The  same  Subject ;  American  Doctrine 240 

171.  Whether  Will,  to  be  operative,  must  conform  to  the  Law  of  Last 

Domicile 241 

172.  Foreign  and  Domestic  Administration 242 

173.  Foreign  Appointment  of  Executors  or  Administrators  Unavailable  in 

Domestic  Jurisdiction ;  Local  Letters  required;  Exceptions  243 

174.  Principal  and  Ancillary  Letters  ;  Comity  as  to  transmitting  Assets  for 

Distribution,  after  Local  Debts  are  satisfied 246 

175.  Duty  of  the  Domestic  Representative  as  to  Foreign  Assets    .     .     .     249 

176.  Voluntary  Surrender  of  Assets  in  Local  Jurisdiction  to  Domiciliary 

Administrator 251 

177.  Liability  of  Representative  in  Domestic  Jurisdiction  for  Acts  done 

Abroad 253 

178.  Permitting  Foreign  Creditors  to  sue  in  the  Local  Jurisdiction  .     .     .     254 

179.  Principal  and  Ancillary  Jurisdictions,  how  far  Independent  of  One 

Another 255 

180.  Responsibility  where  the  same  Person  is  Principal  and  Ancillary  Rep- 

resentative     256 

181.  Ancillary  or  Local  Representative,  how  far  Responsible  for  Assets  .     257 

182.  Where  different  Executors  are  named  in  a  Will  for  different  Sove- 

reign Jurisdictions 258 

183.  Where  the  Principal  Representative  cannot  procure  Foreign  Assets, 

Legatees  or  Distributees  may  pursue 258 


XIV  TABLK    OF    CONTEXTS. 

CHAl'TKR    VIII. 

UFKICIAIINC     U  ITHUr  r    AN     AITUINTMENT. 

lAtiE 

§  184.  Executor  de  son  Tort  at  Common  Law  dehnccl 260 

1 85.   V^arious  Circumstances  under  which  one  may  act  without  having  been 

qualified 261 

18(1.    Wrongful  and  Injurious  Dealings  with  a  Dead  Person's  P^slate  ;  Ex- 
ecutor <A- xiw  Tort 262 

187.  Executorship  rt6' j<v/  Tort:   Legal  Consequences 264 

188.  Effect  of  Wrongful  and  Injurious  Dealings,  aside  from  the  Theory  of 

Executorship  de  son  Tort 266 

189.  Modern  Statutes  restrict  the  Liabihty  of  Intruder  to  Creditors  and 

Strangers 267 

190.  Liability  of   Intruder  upon   the   Estate  to  the  Rightful   Executor  or 

Administrator 268 

191.  Intermeddling  with  Lands  of  the  deceased 270 

192.  Liability  of  One  who  Administers  under  Void  Letters,  etc.  .  270 

193.  Beneficial   Dealings  with  a  Dead  Person's  Estate  by  One  not  ap- 

pointed        271 

194.  Acts  done  by  a  Rightful  Executor  before  qualifying 273 

195.  Acts  done  by  a  Rightful  Administrator  before  qualifying    ....  276 

196.  Whether  a  Suitable  Representative  who  has  intermeddled  can  be 

compelled  to  take  out  Letters 279 

197.  Intermeddling  by  a  Third  Per.son  after  the  Grant  of  Letters  Testa- 

mentary or  Administration 280 

I97t7.  Debtor's  Payment  to  Sole  Distributee,  etc 280 

I'AKT  III. 

ASSETS  AND  THE    INVENTORY. 
CHAPTER  I. 

ASSETS  OK  AN    K.STATE. 

§   198.   What  compri.se  .\ssets  of  a   Deceased   Person's   Estate;   Personal 

contrasted  with  Real  Assets 282 

199.  Personal  Property  of  the  Decedent  vests  in  the  Executor  or  Admin- 

istrator       283 

200.  Enumeration  of  Personal  Assets;  Choses  in  Action  as  well  as  Choses 

in  Possession 283 

201.  ^Enumeration  of  Personal  Assets  continued;  Contingent  and  Execu- 

tory Interests,  etc 286 

202.  Enumeration    of    Personal    Assets    continued;  Stock;    Public    and 

Corporation  Securities;  Life  Insurance  PoHcies 287 


TABLE    OF    CONTEXTS.  XV 

VM.E 

203.  Enumeration  of  Personal  Assets  continued  ;  Personal  Property  taken 

or  given  in  Security 288 

204.  To  constitute   Personal  Assets,   the  Title  must    have  stood  in  the 

Decedent  at  his  Death 28S 

205.  Personal   Property  of  Another  among  the  Goods  of  Deceased  not 

Assets;  Identification 290 

206.  Personal  Property  of  the  Decedent  left  in  Another's  Possession  is 

Assets        291 

207.  Personal  Property  constitutes  Assets  notwithstanding  Ultimate  Title 

of  Legatees,  Heirs,  etc 291 

208.  Debt  due  from   Representative  or  Legatee,  etc.,  to  the  Decedent 

constitutes  Personal  Assets 292 

209.  Personal  Assets  coming  to  the  Knowledge  but   not   Possession  of 

the  Representative 294 

210.  Personal  Assets  or  not,  where  Decedent's  Title  was  Qualified      .     .  295 

211.  Various  Cases  where  Representative  does  not  hold  strictly  as  Assets  296 

212.  Real  Estate  descends  to  Heirs;  not  Assets  except  for  Deficiency     .  297 

213.  Executor  or  Administrator  has  no  Inherent  Authority  as  to   Real 

Estate 298 

214.  Real  Estate  of  Mortgagor  or  Mortgagee ;  Rule  of  Assets    ....  300 

215.  Rule  of  Assets  as  to  Lands  set  off  in  Execution 301 

216.  Rents,  Profits,  and  Income  of  Real  Estate;  Damages,  etc. ;  Rule  of 

Assets        301 

217.  Legal  Character  of  Property,   Real  or  Personal,  fixed  at  Owner's 

Death  ;  Rule  of  Equitable  Conversion 302 

218.  Character  of  Property  at  Owner's  Death ;  Instances;  Contract  to 

sell ;  Land  Damages ;  Fire-Insurance  Money,  etc 304 

219.  Gift  Causa  Mortis,  etc.,  as  affecting  Question  of  Assets      ....  305 
219a.  Effect  of  Insolvency ;  Equitable  Assets 306 

220.  Assignment,  Gift  or  Transfer  by  the  Decedent,  to  be  avoided  if 

Fraudulent  as  against  his  Creditors 306 

221.  Equitable  Assets  as  distinguished  from  Legal  Assets 307 

222.  Assets  where  Property  is  appointed  under  a  Power 309 

223.  Chattels  Real  as  Assets;  Leases,  etc 310 

224.  Chattels  which  come  by  Remainder  as  Assets 311 

225.  Things  on  the  Border-line  of  Real  and  Personal ;  Rule  of  Assets 

applied  to  Heirlooms 311 

226.  Rule  of  Assets  applied  to  Emblements 312 

227.  Rule  of  Assets  applied  to  Fixtures 314 

227a.  Rule  of  Assets  applied  to  Severance  of  Land  Products,  etc.  .     .     .  317 

228.  Rule  as  to  Foreign  Assets 317 

CHAPTER  II. 

INVENTORY  OF  THE  ESTATE. 

229.  Inventory  required  formerly  in  England  ;  Custom  Fallen  into  Disuse  318 


X\'i  TABLK    Ol"    CONTENTS. 


PAGE 


§   ^30.   Inventor)- required  in  American  Practice;  whether  Indispensable  319 

2}i.   Dispensing  with  an  Inventory  after  Lapse  of  Time 322 

J32.   Quahfied  Representative  not  exempt  from  rendering  an  Inventory   .  322 

-i3'  -34-  ^^'hat  the  Inventory  should  contain 323,  325 

235.  Assets  and  Inventory  in  Special  Instances;  Co-ownership,  etc.    .     .  326 
2  ^6.  Kffect  of  the  Inventory  ;   Tower  of  the  Local  Probate  Court  to  alter, 

etc. ;  Inventory  as  Evidence 327 

237.  Advantages  of  Returning  an  Inventory 329 


PART   IV. 

(iENEKAL    POWERS,    DUTIES    AND    LIAHILITIE.S    OF    EXECUTORS 
AND    ADMINISTRATORS    AS    TO    PERSONAL    ASSETS. 

CHAPTER    I. 

representative's  title  and  authority  in  general. 

§  238.  'I'itle  to  Personal  Property  devolves  upon   Representative  by  Rela- 
tion from  Decedent's  Death;  Liabihty,  etc 331 

239.  The  Representative's  Title  and  Authority  during  the  Administration 

excludes  that  of  all  Others  in  Interest 332 

240.  Executor  or  Administrator  has  a  right  to  dispose  of  Personal  Assets     333 

241.  The  same  Subject ;   Executors  and  Administrators  distinguished  in 

this  Respect        ^23 

242.  But  Title,  etc.,  of  Executor  or  Administrator  is  by  way  of  Trust     .     334 

243.  Identity  of  Assets  should  be  preserved  apart  from  the  Representa- 

tive's Private  Funds,  so  as  to  preserve  the  Title  Intact   ....     335 

244.  Xo  Title  is  taken  by  Representative,  to   Property  held  by  Decedent 

in  Another's  Right ;  Corporation,  etc 336 

245.  Representative  does  not   succeed  to  Decedent's  Trusts,  but  should 

close  the  Accounts 338 

246.  llow  one  ceases  to  hold  Assets  as  Representative,  so  as  to  hold  in 

his  Individual  Character;  Election,  etc 33S 

2.17.   Devolution  of  Title  where  the  Personal  Representative  is  also  Guar- 
dian of  Decedent's  Children,  or  Trustee  under  the  Will      .     .     .     339 

247<;.  Executor  sometimes  acts  as  Trustee 341 

2iS.  Devolution  of  Title  where  Representative  is  also  a  Legatee  or  Dis- 


tributee 


342 


- ,  y.   Devolution  of  Title  where  Executor  is  also  Residuary  Devisee  and 

l.€gatee 342 

250.  Executor  should  administer  Estate  undisposed  of  \iiider  the  Will 

where  there  is  a  Partial  Intestacy 342 

251.  Right  and  Duty  of  discharging  Contract  Liabilities,  etc.,  of  Deceased  342 

252.  Avoidance,  etc.,  of  Contracts  by  the  Deceased  Illegally  made,  etc.     .  343 


TABLE    OF    CONTENTS.  XVll 

I'AGR 

§  253.  Contracts  Personal  to  the  Deceased,  etc.,  distinguished  from  those 

requiring  Performance  after  his  Death 344 

254.  Personal  Liability  of  the  Representative  upon  the  Decedent's  Debts 

or  Contracts 345 

255.  The  same  Subject ;  how  such  LiabiHty  is  incurred ;  Statute  of  Frauds ; 

Sufficient  Consideration,  etc 346 

256.  The  Representative's   own  Creation   of  a  Debt  binds   Himself  and 

not  the  Estate 347 

257.  Lien  on  the  Assets  is  for  Representative  rather  than  for  the  Person 

dealing  with  him  ;   Estate  how  far  Answerable 349 

258.  The  same  Subject ;   Negotiable  Notes,  etc.,  running  from  or  to  the 

Executor  or  Administrator  ;  Other  Instances 350 

259.  Lien  on  the  Assets,  how  far  existing  for  the   Representative's  own 

Immunity 352 

260.  This  Rule  of  Lien  applied  in  settling  Account  of  a  Representative 

Deceased,  Removed,  etc 353 

261.  Assets  recovered  by  Representative  on  his  own  Contract  enures  to 

the  Estate 354 

262.  The  Estate  should  not  derive  Unconscientious  Advantage,  etc.    .     .  354 

263.  Whether  Admissions  by  Representative  bind  the  Estate      ....  355 

264.  Representative's   Power  over  Assets  whether  controlled  by  Probate 

or  Equity  Courts 355 

265.  Interpleader,  etc.,  for  Instructions,  etc.,  by  the  Personal  Representa- 

tive        356 

266.  Representative  not  a  Proper  Party  to  Suits  for  annulling  a  Marriage     357 

267.  Vesting  of  Possession;  Chattels   Real,  etc.,  as  distinguished  from 

Chattels  Personal 357 

268.  Whether  the  Representative  may  act  by  Attorney 358 

268a.  No  Property  in  the  Body  of  the  Intestate 358 

26?>b.  Transactions  barred  by  Lapse  of  Time ....  358 

CHAPTER   II. 

COLLECTION    OF    THE    ASSETS. 

269.  General   Duty  of   Executor  or  Administrator  to  collect  the  Effects, 

etc 359 

270.  Statute  Methods  for   discovering  Assets  in  Aid  of  the   Representa- 

tive's Pursuit 360 

271.  Special  Statute  Proceedings  against   Intermeddlers  with  the  Assets, 

etc 361 

272.  Power  of  Executor  or  Administrator  to  enter  Premises,  force  Locks, 

etc.,  in  Pursuit  of  Assets 362 

273.  Duty  to  pursue  or  collect  depends  upon  Means  at  Representative's 

Disposal 365 

274.  Duty  to  pursue  or  collect  depends  also  upon  Sperate  or  Desperate 

Character  of  the  Claims 365 

B 


xviii  TABLE    OF    CONTENTS. 

PAGE 

§   ::75.   Duty  to  pursue  or  collect  depends  also  upon  Representative's  Means 

of  Knowledge 3^6 

276.  Legatees,  Creditors,  etc.,  have  no  Right  to  hold  against    Represen- 

tative    366 

277.  Suing  to  recover  Assets;  Actions  founded  in  Contract,  Duty,  etc., 

survive 3^7 

278.  Survival  of  Actions  founded  in  Contract ;    E.xceptions  to  Rule     .     .     368 

279.  2S0.  .Vctions  founded  in  an  Injury  to  Person  or  Property  died  with 

the  Person  at  Common  Law ;  Later  Variations  of  this  Rule    .  368,  370 
2S1.  The  same  Subject;   Replevin,  Detinue,  etc.,  by  the  Representative  .     372 

282.  The  same  Subject ;  Modern  Statutes  affecting  the  Rule-     ....     373 

283.  The  same  Subject ;  Action  for  Damages  in  cau.sing  Death      .     .     .     374 

254.  The  same  Subject;  Actions  founded  on  Wfongs  done  to  Real  Es- 

tate, etc 376 

255.  Actions  upon  Covenants   Real,  etc. ;   Whether  Representative  may 

sue 377 

286.  The  same  Subject  ;  Breach  of  Covenant  in  Deed  or  Lease      .     .     .  379 

287.  Action  for  disturbing  Possession;    Pew,  Lease,  etc 379 

2S8.  In  General,  Personal  Representative  sues  for  Assets  of  the  Estate  .  380 

289.  Suits,  whether  to  be  brought  by  Representative  in  his  own  Name  or 

as  Representative 380 

290.  The  same  Subject ;  General   Principle  as  to  suing  in  Representa- 

tive's Individual  or  Official  Name 381 

291.  'ihis  Principle  appUed  in  suing  for  Torts  affecting  the  Property  .     .  382 

292.  Suits  on  Contracts  made  with  the  Representative 383 

293.  Suit  by  Representative  on   Promissory  Note  or  Other  Negotiable 

Instrument 384 

294.  General  Conclusion  as  to  Suing  upon  Contracts  in  the  Individual 

or  Representative  Character 385 

295.  Prosecution  of  Suits  in  Equity  by  the  Personal  Representative    .     .     386 

296.  Proceedings  to   obtain    Possession   of   Specific   Negotiable   Instru- 

ments, etc.,  belonging  to  the  Estate  ;  Agency 387 

297.  Pursuit  of  Assets  where  Decedent  fraudulently  transferred      .     .     .  387 

298.  Representative's  Power  to  Compromise  or  Arbitrate 388 

299.  Effect  of  Contract   or  Covenant  to  the  Decedent,  which  did   not 

name  his  Executors,  Administrators,  etc 388 

300.  The  same  Subject ;  Effect  where  the  Expression  "  As.signs,"  "  Next 

of  Kin,"  "  Heirs,"  etc.,  is  used 389 

301.  Right  of  Representative  to  distrain  or  sue  for  Rent  in  Arrears    .     .     390 

302.  Rights  of  Personal  Representative  upon  Conditions  made  with  the 

Deceased 391 

303.  Right  accruing  to  Personal   Representative  by  Chattel  Remainder, 

etc 391 

304.  Right  accruing  to  Personal  Representative  in  his  Time  and  after  the 

Decedent's  Death 392 

305.  Rights  of  Personal  Representative  as  to  Pledge,  Collateral  Security, 

etc 393 


TABLE    OF    COXTENTS.  XIX 

I'A'.F. 

§   306.   Collection  of   Debts  with   Security;   changing  or   renewing   the   Se- 
curity      394 

307.  Gathering  the  Crop  or  Emblements 394 

308.  Want  of  Diligence  or  Good  Faith  in  collecting  Assets 395 

309.  Collection  of  Interest-bearing  Debts  ;   Usury,  etc 396 

310.  What  may  be  taken  in  Payment ;    Private  Arrangements  with  Debtor, 

etc 3'/' 

311.  Liability  where  Property  is  taken  or  Money  collerled  by  Mistake  as 

Assets 397 

311a.  Effect  of  Payment,  etc 397 

.  CHAPTER  in. 

CARE,   CUSTODY,   AND  MANAGKMKNT  OF  THK  ASSETS. 

312.  Care,  Custody,  and  Management  of  Assets  an  Important  Function  .  39S 

313.  Executor  or  Administrator  how  far  regarded  as  a  Bailee  in  Respect 

of  Responsibility,  Honesty,  etc 398 

314.  As  to   Care  and  Custody;   Responsibility  of  Executor  or  Adminis- 

trator like  that  of  the  Bailee 3')9 

315.  The  same  Subject;   Whether  this  responsibihty  is  that  of  a  Gratui- 

tous Bailee  or  a  Bailee  with  Recompense 400 

316.  Liability  of  Personal  Representative  in  the  General  Management  of 

Estate 40 ' 

317.  Management  of  the  Estate;  Collection  of  Income,  etc. ;   Responsi- 

bility of  the  Representative 402 

317(2.  As  between  Investing  Cash  or   Using  it  for   Payments,  Deposits, 

etc 403 

318.  Paying  Assessments,  Discharging  Liens,  etc.,  upon  Personal  Assets  404 

319.  Personal  Representative's  Vote  upon  Stock 405 

320.  Putting  Assets  into  a  Salable  Condition,  etc.  ;   Repairing,  etc.      .     .  405 

321.  Responsibility   of    Personal    Representative   for    Acts  of   his    own 

Agent,  Attorney,  etc 406 

322.  Duty  as  to  investing  Assets  or  placing  the  Funds  on  Interest       .     .  408 
^2;^,  324.  Investments,  how  to  be  made,  etc. ;  Rule  of  Liability  .     .     .  409,410 

325.  Liability  for  placing  or  leaving  Assets  in  Trade,  Speculation,  etc.     .  412 
325a.  Closing  out  Decedent's  Business,  etc 4 '4 

326.  326a.  Carrying  on  a  Trade  with  Assets;  Liability,  etc.    .     .     .      415,  417 

327.  Sale,  Investment,  etc.,  of  Perishable  Assets;  Cattle,  etc 418 

328.  Rule  as  to  calling  in  Money  already  out  on  Loan  or  Investment  .     .  418 

329.  Rule  as  to  making  Unauthorized  Loans  or  Investments      ....  419 

330.  Representative's  Acts  are  for  Benefit  of  those  interested  in  Estate ; 

Good  Faith,  etc.,  required 4-° 

■531.   .\ssets  should  be  kept  distinct  from  Representative's  Own  Property  421 
332.  Liability  qualified  where  Acts  are  performed  under  Advice  and  As- 
sent of  the  Parties  in  Interest 422 


XX  TABLEOF  CONTENTS. 

PAGE 

§  2;iy  Liability  qualified  where  Acts  are  performed  under  Direction  of  the 

Court 4-2 

334.  Rule  where  Control  is  taken  by  Court  out  of  Representative's  Hands,     423 

335.  Directions  of  a  Will  as  to  Investment,  etc.,  may  be  reasonably  fol- 

lowed; Specific  Legacy,  etc 424 

335^.   Lending  without  Security  or  on  Poor  Security 425 

336.  Summary  of   Doctrine  as  to  Management   and   Investment;  Devia- 

tions, when  permitted 426 

337.  .Management,  Investment,  etc.,  by  E.\ecutor  or  Administrator  simi- 

lar to  that  by  Guardian,  Trustee,  etc 427 

^^>i.   Election  to  charge  Representative  or  to  accept  the  Investment    .     .     427 

ClIAI'TKR  IV. 

THE    KErKKSE.NTATIVE's    POWER    TO    SELL,    TRANSFER,    AM)    PURCHASE. 

339.  Representative's  Power  to  dispose  of  Assets 428 

340.  Sale  or  Transfer  can  only  be  made  while  the  Representative  holds 

office 428 

341.  Whether  Assets  should  be  sold  at  Public  or  Private  Sale    ....  429 

342.  Sale  of  Goods  bequeathed  for  Life  with  Remainder  over    ....  429 

343.  Power   of    Representative  to   dispose  of    C'hattels    specifically  be- 

queathed    430 

344.  Sales  of  Perishable  Assets,  etc 430 

345.  Representative's  Sale  of  his  Decedent's  Business 430 

346.  Sales  and  Transfers  of  Personal  Assets  under  Probate  Direction     .  432 

347.  Authority  to  sell  or  transfer  or  buy  as  affected  by  Expressions  in  the 

Will 434 

348.  Consulting   Parties  in  Interest,  as  to  the  Time,  Manner,  etc..  of  sale  435 

349.  Representative  may  pledge  or  mortgage  Assets  instead  of  selling     .  436 

350.  Bo)i<i  Fide  Purchaser,  Pledgee,  etc.,  not  bound  to  see  to  Ap])lication 

of  what  he  pays  or  advances 436 

351.  Letters  Te'^tamentary  or  of   .-Xdministration  are  Credentials  of  Au- 

thority to  transfer,  elc 437 

352.  Good  Faith  and  Caution  requisite  from  Purchaser,  Pledgee,  etc.,  in 

dealing  with  Per.sonal  Representative 438 

353.  Disposal  of  Chattels  Real ;  assigning  and  underletting  Leases      .     .     439 

354.  Re.straints  upon  the  Power  to  dispose  of  Assets  as  concerns  the 

Represe:ilative  himself Ill 

355.  Representative's  Liability  for  Negligence,  Fraud,  etc.,  in  the  sale  ol 

Assets 44  J 

356.  The  same  Subject ;  Obtaining   Payment  or  taking  Security  for  tiie 

Purcha.se-Money 443 

357.  Collu-sive  or  Fraudulent  Disposition  of  Assets  by  the  Representative  444 

358.  Purchase  by  a  Representative  at  his  own  Sale,  etc 445 

359.  Reopening  the  Representative's  Voidable  Transfer,  etc.;  Relief  as 

against  Third  Parties 448 


TABLE    OF    CONTENTS.  XXI 

I'AfiK 

g    360.   Personal  Representative   cannot   avoid   iiis  own  Voidalile  Transfer, 

etc 44'"^ 

361.  Whether  the  Representative  warrants  Title  when  he  sells    ....  449 

362.  Sales  of  Negotiable  Instruments  by  the  Representative 451 

363.  363^.  Representative's  Authority  to  purchase 453,  454 

364.  No  Authority  to  give  away  Assets 454 

364^.   Right  to  recover  Assets  wrongly  Transferred 454 

CHAPTER  V. 

LI.A.BILITY    OF    AN    EXECUTOR    OR    ADMINISTRATOR. 

365.  Liability  in  Respect  of  Acts  of  Deceased  or  his  Own  Acts  ....  455 

366.  Liability  in  Respect  of  Acts  of  Deceased ;  Survival  of  Actions  against 

the  Decedent  founded  in  Contract 455 

366«.  The  same  Subject ;  Sales  and  Bargains  of  the  Decedent    ....  456 

367.  The  same  Subject;  Exception  as  to  Personal  Contracts  of  the  De- 

ceased    457 

368.  The  same  Subject;  Distinction  between  Gifts  and  Contracts  .     .     .  459 

369.  The  same  Subject ;  Form  of  Action  sometimes  Material  in  this  con- 

nection ;  Law  or  Equity 460 

370.  Survival  of  Actions  against    Deceased    founded  in  Tort,   not  per- 

mitted at  Common  Law 460 

371.  The  same   Subject;  whether  Replevin   can   be   maintained  again.st 

the  Representative 462 

372.  The  same  Subject ;  whether  other  Remedies  might  be  applied  be- 

cause of  the  Tort 462 

373.  Modern  Statutes  enlarge  the  Survival  of  Actions  against  Decedent  463 

374.  Survival  of  Actions  for  Rent  or  Damage  to  Real  Estate     ....  464 

375.  Liability  of  Representative  on  Covenants  of  his  Decedent ;  Cove- 

nants under  Lease,  etc 465 

376.  Liabihty  of  the  Personal  Representative  for  Rent 467 

377.  Liability  of  Representative  on  Covenants  concerning  Real   Estate, 

etc 470 

378.  Liability  of   Representative  on   Joint  or  Several,  etc..  Contracts  of 

Decedent 470 

379.  Liability  of  Representative  of  Deceased  Partner          471 

380.  Liability  of  Representative  of  Deceased  Stockholder 472 

381.  Exoneration  of  Personal  Property  specifically  bequeathed  ....  473 

382.  Liability  of   Personal   Representative  in  Respect  of  his  Own  Acts ; 

Negligence  or  Bad  Faith,  Torts,  etc 474 

3S3.  Common- Law  Doctrine  as  to  ZJfZ'rtJtowV  or  Waste 475 

384.  The  Essential  Principle  of  Devastmnt  is  of  General  Application   .     .  475 

385.  Representative  not  to  be  sued  in  such  Capacity  for  his  own  Wrong- 

ful Act;   Qualifications  of  the  Rule 477 

386.  Instances  of /)t'jv?jV</7'/?  considered;   Effect  of  an  Arbitration  or  Com- 

promise of  Demands 478 


Xxii  TABI.K    OF    COXTF.XTS. 

PAGE 

§  3S7.  Compromise  or  Arbitration  of  Claims;  Modern  Statutes  ....  479 
3SS.  Release  of  Debt,  Renewals,  etc.,  by  the  p:.\ecutor  or  Administrator  .  48 1 
389.  Disregarding  the  Har  of  Limitations;  General  and  Special  Statutes 

of  Limitations 482 

390,390x7,/'.     General  and  Special    Statutes  of   Limitations;  the  Subject 

continued 4'^4. 486,  487 

391.  Opportunity  to  ascertain  whether  the  Estate  is  Insolvent    ....     488 

392.  Instances   of  Dci'astin'it    continued;     disregarding  the   Statute  of 

Frauds 488 

393.  Dr..'astavit\<\^Q\\  excused  by  Concurrence,  .Acquiescence,  etc.,  of  those 

injured  thereby 489 

394.  Complicity  of  Third  Persons  in  the  Dez'astavit  renders  them  liable    .  489 

395.  Liability  of  Executor  or  Administrator  on  his  own  Contracts  .     .     .  490 

396.  Representative  how  sued  upon  his  Express  Promise,  Collateral  Un- 

dertaking, etc 49' 

397.  Representative  liable  as  an  Individual,  where  Cause  of  Action  wholly 

accrued  after  his  Decedent's  Death,  on  Transactions  with  Him, 

etc 492 

39S.   Exceptional  instance  of  suing  for  Funeral  Expenses,  etc 493 

398t7.  Liability  of  Executor  or  Administrator  on  Negotiable  Instruments  494 

398/'.  Action  against  Executor  or  Administrator  for  Waste 495 

CHAPTER    VL 

CO-ADMINISTRATION    A.NJ)    i.il' Al.IKI  KI)    ADM  INMSTRATION. 

§  390.   Doctrines  of  foregoing  Chapters  apply  to  Qualified  Trusts                 .  496 
400.  401.   Rights,  Duties,  and  Liabilities  of  Co-Executors;  their  Title  and 

Authority 496,  499 

402.  Co-H\ecutors  ;  their  Liability,  etc 500 

403.  Co-Executors ;  Actions  by  and  against 507 

404.  Rights,  Dutie.s,  and  Liabilities  of  Co-Administrators 508 

405.  Survivorship  among  Co-Flxecutors  or  Co-.Vdmini.strators     ....  509 

406.  Liability  of  Co-Executors    and   Co- Administrators  on  Bonds  ;   Joint 

or  Several  Honds 511 

407.  Rights,   Duties,   and    Liabilities  of    .Xdniiiiistrator  with  the  Will   an- 

nexed     512 

408.  409.   Rights,     Duties,    and     Liabilities    of    .\dministrator    dc    Bonis 

noti 514,517 

410.  The  same  Subject ;   Relation  of  Administrator   </<■  Moiiis  iioii  to   his 

Predecessor's  Contracts,  etc 520 

41 1.  Suit  on  Negotiable  Instrument  as  concerns  .\dministration  de  Bonis 

"<"' 5-3 

412.  .Administrator  dt'  Bonis  tion   bound  io  observe  Good  Faith  and  Pru- 

dence, like  Other  Administrators 524 

413.  Administrator  (A' /Aw/'j- ;/c;/ with  Will  annexed 525 


TABLE    OF    CONTENTS.  XXIU 

PAflB 

§  414.   Rights,  Duties,  and  Liabilities  of  Temporary  and  Special  Adminis- 
trators, etc 526 

415.  Validity  of  Qualified  Representative's  Acts  does  not  depend  upon 

his  Own  Designation  of  the  Office 526 

416.  Negligence,  etc.,  by  Various  Representatives  in  Succession      .     .     .  527 

PART  V. 

PAYMENTS    AND    DISTRIBUTION. 
CHAPTER  L 

DEBTS    AND    CLAIMS    UPON    THE    ESTATE. 

§  417.  Executor  or  Administrator  is  bound  to  pay  Debts,  Claims,  etc.         .  528 
418,419.  Notice  of  Appointment;   Presentation  of  Claims:  Statutes  of 

Special  Limitations 529,  532 

420.  Presentation  of  Claims ;  Statute  Methods  considered       ....  534 

421.  Funeral  Charges  and  their  Priority 536 

422.  Funeral  Charges;  Place  of  Final  Interment,  Gravestone,  etc  .     .     .  540 

423.  Other   Preferred  Claims;  Administration  Charges;   Debts  of  Last 

Sickness 545 

424.  These  Preferred  Claims  rank  together;   Settlement  in  Full  or  Rat- 

ably        546 

425.  General  Payment  of  Debts ;   Rule  of  Priority 546 

426,427.  Rules  of  Priority ;  English  Classes  enumerated     ....     547,549 

428.  Rules  of  Priority  ;  American  Classes  enumerated 550 

429.  Claims   grounded  in  a  Tort ;   Damages,  etc. ;  Contingent   Claims ; 

How  ranked 555 

430.  Mortgage  Debts ;  Rights  of  Creditors  having  Security 555 

431.  Invalid  or  Exorbitant  Claims  ;   Voluntary  Transactions 558 

432.  Claims  of  Persons  disappointed  of  a  Legacy,  etc 559 

433.  Decree  or  Order  for  Payment 559 

434.  Commissioners  or  Auditors  to  examine  Claims 560 

435.  Exhaustion  of  Assets  in  paying  Superior  Claims ;   Preferences  to  be 

observed;  Representation  of  Insolvency 561 

436.  Notice  of  Debts  as  affecting  their   Payment  with  due  Preferences; 

English  Rule 562 

437.  The  Same  Subject;   PZnglish  Rule  as  to  Equal  Creditors;  Creditor's 

Bill,  etc 563 

438.  The  Same  Subject;  American  Rule 565 

439.  439<?.   Debt  due  the   Representative  from  the  Estate;   Right   to  re- 

tain, etc 566,  569 

440.  Interest  on  Claims  presented 569 

441.  Mode  of  paying  off  Claims ;  Extinguishment,  etc 570 

442.  J'ersonal  Liability  of  Representative  for  Debts 570 


Xxiv  TABLE    OF    CONTENTS. 

lAl.E 

§  443.  Paj-ment,  or  Advancement,  out  of  Representative's  own  Funds    .     .571 

444.  Recovery  of  Over- Payment  from  Creditor 571 

445.  When  Heirs  or  Next  of  Kin,  etc.,  are  liable  for  Debts  of   the  De- 

ceased    57- 

446.  Payment  of  Debts  and  Claims  where  the  Estate  proves  Insolvent    .  572 
446^.  Ancillary  and  Foreign  Administration ;  Payment  of  Debts      .     .     .  574 

446^.  New  Assets  for  Payment  of  Debts 574 

446f.  Buying  up  Claims,  etc 574 

446</.  Debts  for  continuing  a  Decedent's  Trade 574 

CHAPTER  n. 

SPECIAL   ALLOWANCES    TO  WIDOWS    AND    MINOR    CHILDREN. 

§  447.  Wife's  Paraphernalia,  Separate  Property,  etc.,  do  not  enter  into  Ad- 
ministration of  Husband's  Estate 575 

44S.  Widow's  Allowance  under  Modern  Statutes 575 

449.  Widow's  Allowance  ;  whether  confined  to  Cases  of  Distress    .     .     .  576 

450.  Maintenance  for  a  Particular  Period  sometimes  specified     ....  577 

451.  Precedence  of  W^idow's  Allowance  over  other  Claims  ;  whether  inde- 

pendent of  Distribution,  etc. ;  Effect  of  Decedent's  Insolvency    .  578 

452.  Decree  of  Allowance,  etc.,  how  enforced 580 

453.  Widow's  Allowance,  how  barred 580 

454.  Widow's   Allowance;  Effect  of  her    Death  or   Remarriage,  etc.,  be- 

fore a  Grant 581 

455.  Allowance  to  Minor  Children 582 

456.  Specific   Articles  of   Personalty  allowed  Widow  and  Children;   Ex- 

empt Chattels,  etc 583 

457.  Use  of  DwelUng  House ;  Widow's  Quarantine 584 

457a.  Widow's  Election  to  take  against  her  Husband's  Will       ....  585 

CHAPTER  HI. 

LEGACIES,  THEIR   NATIRE  AND   INCIDENTS. 

§  458.  This  Subject  a  Branch  of  the  Law  of  Wills 587 

459.  Legacy  defined ;  Executor  under  a  Will  should  pay  or  deliver ;   Leg- 

acy to  Satisfy  Debt 587 

460.  Description  of  the  Legatee,  and  who  may  be  such 588 

461.  Subject-Matter  of  Legacies;    Specific   distinguished  from    General 

Legacies 589 

462.  Whether  a  Residuary  Bequest  can  be  deemed  Specific 592 

463.  Bequests    for    Illegal    and    Immoral    Purposes   void;    Superstitious 

Uses,  etc 592 

464.  Bequests  to  Charitable  Uses  ;  Statute  of  43  Elizabeth,  c.  4      .     .     .  593 

465.  Bequest  void  for   Uncertainty;    or  where   Principal  or   Income  is 

locked  up  too  long 594 


TABLE    OF    CONTENTS.  XXV 

PAGE 

§  466.   Legacies  Absolute  or  Conditional,  X'ested  or  Contingent      ....  596 

467.  Lapsed  Legacies;  General  Rule 596 

468.  Cumulative  Legacies  ;  Repetition  or  Substitution  of  Legacies  598 

469.  Satisfaction  of  Debts  or  Portions  by  Legacies 599 

470.  Release  of  Debts  by  J^egacies 599 

471.  Ademption  of  Legacies 601 

472.  Trustees  under  a  Will;   Equity  and  Probate  Jurisdiction;    Duties  of 

a  Trustee  ;   Equity;    l^robate  Procedure 601 

473.  Construction  of  Wills  and  Legacies;    Hill  of  Interpleader  to  icnune 

Doubts,  etc 602 

474.  Construction  of  Will-s,  Legacies,  etc 604 

475.  Doubtful  Points  settled  by  the  Agreement  of  all  Parties  in  Interest  604 

CHAPTER  IV. 

PAYMENT    AND    SATISFACTION    OF    LEGACIES. 

§  476.  Payment,  etc.,  of  Legacies  by  the  Executor ;  All  Valid  Legal  Claims 

take  Precedence 606 

477.  Executor's  Bond  of  Indemnity  from  Legatees 607 

478.  Legacies  are  usually  Payable  within  a  year  from  Testator's  Death    .  608 

479.  When  the  Legatee's  Right  vests;  Rule  as  to  Annuitants,  Beneficia- 

ries for  Life,  etc 609 

480.  Interest  and  Produce  of  Specific  Legacies,  etc 6ic 

481.  Interest  on  General  Legacies 611 

482.  Interest  on  Legacies  to  Children,  Widow,  etc. ;  and  other  Special 

Instances 613 

483.  To  whom   Legacies  should  be  paid ;  Deceased  Legatees ;  Infants, 

Insane  Persons,  etc 614 

484.  To  whom  Legacies  should  be  paid;  Absentees,  Persons  not  known, 

etc 615 

485.  To  whom  Legacies  should  be  paid;   Testamentary  Trustees,  etc.     .  615 

486.  Delivery  of  Specific  Legacies;   Legatee's  Right  to  select     ....  617 

487.  Method  of  paying  General  Legacies;   Currency,  Deduction.s,  etc.     .  617 

488.  Assent  of  the  Executor  to  a  Legacy 618 

489.  Legatee's  Assent  to  the  Legacy  ;   Election 621 

490.  Abatement  of  Legacies  in  Case  of  Deficient  Assets 622 

490a.  Personalty  the  Primary  Fund  for  Payment  of  Legacies  ;  Exceptions  624 

491.  The  Refunding  of  Legacies  after  their  Payment 625 

491a.  Change  from  Representative  to  other  Capacity 626 

CHAPTER  V. 

PAYMENT    AND    DISTRIBUTION    OF    THE    RESIDUE. 

§  492.   Residue  of  Personal  Estate  goes  according  to  Testacy  or  Intestacy  of 

Deceased 627 


XXVI  TABLE    OF    CONTENTS. 

PAGE 

§  492J.  Debt  owing  by  Distributee,  etc.,  to  be  Deducted 627 

493.  I.  As  to  the  Residue  in  Case  of  Testacy 627 

494.  Right  of  the  Executor  where  there  is  no  Residuary  Legatee  named  .  628 

495.  II.  As  to  the   Residue  in  Case  of   Intestacy;  Statutes  of   Distribu- 

tion       629 

496.  Surviving  Husband's  Right  to  the  Residue  of  his  Deceased  Wife's 

Personalty 631 

497.  Surviving  Wife's   Rights  in  the  Distribution  of  her  Deceased  Hus- 

band's Personalty 632 

49S.  Rights  of  Children  and  Lineal  Descendants  in  Distribution  .  .  .  633 
499,  500.  Advancements  to  Children  ;  How  reckoned  in  Distribution  635,  636 
501,  502.  General  Distribution  among  the  Next  of  Kin 638,639 

503.  Distribution  where  there  is  no  Known  Husband,  Widow  or  Next  of 

Kin 640 

504.  Time  and  Method  of   Distribution 640 

504<;.  The  same  Subject ;   Decree  of  Distribution 642 

505.  Distribution  where  Real  Estate  has  been  sold  to  pay  Debts     .     .     .  643 

506.  Whether  Distribution  may  be  of  Specific  Chattels   not   reduced  to 

Cash 643 

507.  Death  of  Distributee  pending  Distribution 644 

508.  Distribution;  Refunding  Bond,  Contribution,  etc 645 

508a.  Suit  against   Executor  or  Administrator  for  Neglect  to  Distribute, 

etc 646 

PART  VI. 

GENERAL    POWERS,    DUTIES,    AND     LIABILITIES    OF    EXECUTORS 
AND    ADMINISTRATORS    AS    TO    REAL    ESTATE. 

CHAPTER  I. 

representative's    title    AM)    AUTHORITY    IN    GENERAL. 

§  509.  No  Inherent  Authority  or  Title  as  to  Decedent's  Real  Estate      .     .  647 

510.  Rule  where  Representative  collects  Rents,  manages,  etc 649 

511.  Sale  of  Real  Estate  to  pay  Debts,  Legacies,  etc 651 

512.  Exoneration  of  Real   Estate  by  the  Personal ;  Marshalling  Assets; 

Incumbrance,  etc 652 

512a.  Dealing  with  Mortgages  on  Real  Estate 653 

5 1 2^.  Charges  and  .Allowances  with  reference  to  Real  Estate;  Reimburse- 
ment, etc 654 

CHAPTER  II. 

STATUTE    SALES    OR    MORTOAGES    INDEK    Jl  DICIAL    LICENSE. 

§   513.  Modern  Legislation  peiniitting  Sales  under  a  Judicial  License  655 


TAHLE    OF    CONTEXTS.  XXVll 

I'AfiE 

§514.   License  restricted  to  such  Land  as  may  be  needful ;   Rights  of  Heirs 

and  Devisees  respected ;  QuaUfications  of  Rule,  etc 656 

515.  Legislative  Provisions  as  to  Sale;  Essentials  of  a  Purchaser's  Title  657 
515a.  The  same  Subject ;  Principal  and  Ancillary  Jurisdictions   ....  659 

516.  Judicial  License  to  Mortgage  Real  Estate  for  Certain  Purposes    .     .  659 

517.  Levy  of  Execution  obtained  against  the  Representative      .  ^.     .     .  659 


PART  VII. 

ACCOUNTING  AND   ALLOWANCES. 
CHAPTER  L 

ACCOUNTS  OF   EXECUTORS  AND  ADiMIM.STR.A.TORS. 

§  518.  Obligation  to  keep  Accounts ;  Equitable  Jurisdiction  in  England     .  660 

519.  The  same  Subject ;  Creditors' Bills,  etc. ;  English  Practice      .     .     .  661 

520.  The  same  Subject;  Creditors'  Bills,  etc.,  in  American  Practice     .     .  663 

521.  Ecclesiastical  and  Probate  Jurisdiction  of  Accounts  in  England   .     .  665 

522.  Probate  Jurisdiction  of  Accounts  in  the  United  States 668 

523.  Citation  of   Parties  interested  in  the  Account,  in  American  Probate 

Practice ;  their  Assent  to  its  Allowance 67 1 

524.  The  Form  of  Administration  Account 672 

525.  Authentication  and  Proof  of  Account  in  American  Probate  Practice  673 

526.  Periodical  Returns  ;   Partial  Accounts  and  the  Final  Account  .  676 

527.  Settlement  upon  a  Final  Accounting;  Distribution,  etc 680 

528.  Conclusiveness  of  the  Final  Settlement  in  the  Probate  Court        .     .  683 

529.  Perpetuating  Evidence  of  Distribution  and  Procuring  a  Final  Dis- 

charge ;  Effect,  etc 685 

530.  Appellate  Jurisdiction  as  to  Probate  Accounting 685 

531.  Rendering  Accounts  in  Case  of  Death,  Resignation,  Removal,  etc., 

of  Representative        687 

532.  Accounts  by  Co-Executors  or  Co-Administrators,  Temporary  Ad- 

ministrators, etc 688 

533.  Effect  of  Lapse  of  Time,  etc.,  upon  Accounts 689 

534.  No  Account   required  from  Residuary  Legatee  giving  Bond  to  pay 

Debts,  etc 690 

CHAPTER  II. 

CHARGES  AND  ALI,(J\VA.\CES  UPON  ACCOUNTS. 

§  535-  What  is  to  be  charged  to  the  Representative,  and  what  allowed  Him     692 
536.  Representative  should  charge  himself  with  Inventory  Valuation  as 

a  Basis  ;  Corrections  of  Value,  etc 692 


Xxviii  TABLE    OF    CONTEXTS. 

PAGE 

§  537.   Amounts  to  be  added  ;   Representative  charged  with  Personal  Assets 

not  inventoried;  Profits,  Income,  Premiums,  Interest,  etc.        .     .  693 

538.  Charging  the  Representative  with  Interest 694 

539.  Charges  on  Account   a.s   Concerns   Real   Estate  or  its  Proceeds  or 

Profits 697 

540.  Charges  on  .\ccount ;   Miscellaneous  Points       698 

541.  Allowances  to  the  Representative;   Disbursements,  Losses,  etc.  .     .  699 
54::.  Allowances  to  the  Representative;   Subject  continued;  his  Reason- 
able Expenses,  etc 700 

543.  Expenses  of  Education,  Maintenance,  Advancements,  etc.        .     .     .  704 

544.  Allowance  of  Counsel  Eees,  Costs,  etc 705 

545.  Compensation  of  Executors  and  Administrators 708 

546.  General  -Matters  as  to  Charges  and  Allow^ances  ;  Beque.st  in  Lieu,  etc.  713 

547.  Accounts  and  Allowances,  as  to  Foreign  Assets 714 


Appendix:  Remkdies  by  a.nd  against  Executors  and  Administra- 

TuRs 715 

T.\BLE  oi"  CoNsA\(;i  iM  rv 718 

Index 719 

Addenda 749 


TABLE  OF  CASES. 


Section 

Section 

A. 

Allen  V.  Maer 
V.  Ruddell 

390 
516 

Abbay  v.  Hill 

418 

V.  Simons 

120 

Abbott  V.  Abbott 

139 

V.  Shriver 

541 

V.  Miller 

176 

Alliott  V.  Smith 

268a 

V.  Parfttt 

292 

Allison  V.  Allison 

70 

7'.  Tenney 

220 

V.  Davidson 

428 

Abel  T'.  Love 

118 

Allsup  7'.  Allsup 

173 

Able  V.  Chandler 

262, 

361 

Allwood  7'.  Haywood 

225 

Acey  V.  Simpson 

490 

Alsop  V.  Mather 

325 

Ackerley  v.  Oldham 

196 

Alston's  Goods 

2 

Ackerman  v.  Emott 

329 

Alston  V.  Alston 

403 

Adair  v.  Brimmer 

20S.  402, 

541 

V.  Cohen 

239 

Adams  -'.  Adams  167,  2jo 

-3.5.  395. 

451. 

V.  Munford 

247 

454,  500 

520 

Altemus's  Case 

98,  104 

V.  Field 

74,  75 

Alter  V.  O'Brien 

430 

V.  Gleaves 

407 

Alton  7/.  Midland  R. 

280,  366 

7j.  Williams 

282 

Alvord  7'.  Marsh 

195,  3'o 

A  damson,  Goods  of 

37 

American  Board's  Appeal 

40S,  409 

Addams  v.  Ferick 

381 

Ames  7'.  Armstrong 

402 

Adee  z'.  Campbell 

502 

V.  Downing 

236 

Aiken  v.  Bridgman 

403 

7'.  Holdesbaum 

510 

T'.  Dunlap 

43S 

7'.  Jackson 

419 

Ainslie  ?'.  Radcliff 

428 

Anderson  v.  Anderson 

160,  530 

Aird,  Goods  of 

40 

-'.  Arnold 

279 

Airhart  -'.  Murphy 

3-, 

106 

V.  Earle 

402 

Aitkin  v.  Ford 

115 

7'.  Fox 

358 

Ake's  Appeal 

527 

7'.  Miller 

412 

Albright  t'.  Cobb 

119 

7'.  Piercy 

272,  308 

Aldrich,  Appellant 

160 

7'.  Potter 

III 

Aldridge  v.  McClelland 

'55 

Andrew  ?'.  Hinderman 

297 

Alexander  v.  Barfield 

120 

Andrews  7'.  Brumfield 

506 

7/.  Fisher 

508 

7'.  Carr 

154 

?'.  Kelso 

186 

387 

7'.  Hartford  R. 

391 

V.  Raney 

409, 

410 

7'    Huckabee 

390 

V.  Stewart 

128,  40S 

412 

V.  Hunneman 

488 

Alfriend  v.  Daniel 

193 

7\  Sparhawk 

347 

y\lger  V.  Cohvell 

138 

7'.  Stockdale 

405 

Allaire  v.  Allaire 

88 

V.  Tucker 

'54,  234,  273 

Allen  V.  Anderson 

277 

Androvin  v.  Poilblanr 

37 

V.  Diindas 

160 

Angerstein  z'.  Martin 

479 

V.  Edwards 

470 

Annin  z>.  Vandoren 

265 

7'.  Graffins 

256 

258 

Ansley  v.  Baker 

184,  190 

7'.  Hubbard 

537 

Apperson  v.  Bolton 

27,  173.  179 

7'.  K  el  lam 

515 

Applegate  v.  Cameron 

236 

7'.  Kimball 

186 

Apple's  Estate 

16 

V.  McPherson 

85 

Apreece  v.  Apreece 

461,  490 

XXIX 


\xx 


TABLE    OF    CASES. 


Section 


Areson  v.  Areson 

474 

Bacon  v.  Bacon 

321 

Armstrong  7-.  Baker 

67 

7'.  Clark                         324, 

329.  335 

-■.  Burnet 

381 

V.  Howard 

334 

T'.  Stovall 

262 

V.  Parker 

'93 

Arnold  v.  Arnold                   -4 

,  1 70,  482 

V.  l^omeroy 

418 

; .  Babbitt 

146 

V.  Thorp 

258. 390 

?'.  Downing 

433 

Badenach,  Goods  of 

46 

V.  Mower 

530 

Bailey,  Goods  of 

40,  126 

V.  Sabin                         1 1 2 

,  115,  270 

Bailey  7'.  Bailey 

59.  465 

V.  Smith 

527 

-■.  Blanchaid 

525 

V.  Spates 

527 

7'.  Ekins 

429 

Arrington  v.  Hair 

411 

7/.  Gould 

314 

7'.  McLemore 

58 

7J.  Hammond 

484 

Arthur  r.  Carrie 

341 

r.  Miller 

187 

Ashburnr'.  Ashburn 

264 

V.  Ormsby 

277 

Ashburnham  r'.  Thompson 

538 

V.  Scott 

'55 

Ashby  V.  Ashby 

395 

7'.  Spofford 

401 

Ashley  v.  Pocock 

426,  437 

Bain  v.  Matteson 

407 

Ashmore,  Goods  of 

77 

V.  Saddler 

221 

Ashurst  ■■.  Ashurst 

430 

Bainbridge's  Appeal 

422 

Aspden  Z-.  Nixon 

174,  180 

Baines  v.  McGee 

354 

Aspinwall  v.  Queen's  Proctor 

23.  '72 

Baird's  Case 

380 

Aston,  Goods  of 

125 

Baker  v.  Baker 

448,  451 

Astoii's  Estate 

213 

V.  Blood 

'3 

Astor  V.  Hoyt 

200,  218 

V.  Brown 

391 

Astor,  Goods  of 

57,61,87 

7'.  Crandall 

283 

Atcheson  -■.  Robertson 

402 

V.  Fuller 

392 

Atkins  I'.  Kinnan 

366,  428 

7J.  Moor 

397 

V.  Tredgold 

389 

V.  Rust 

433 

Atkinson  v.  Barnard 

124 

Balch  V.  Hooper 

408 

V.  Christian 

141 

V.  Symes 

53 

V.  Grey 

427 

Baldwin  v.  Buford 

127,  153 

Atkison  -■.  Henry 

217 

7'.  Carter 

496 

Atterbury  z'.  Gill 

373 

7'.  Dougherty 

417 

Attorney  General  t.Bouwens  2 

4,  117-175 

7'.  Hatchett 

306 

V.  Dimond 

175 

7'.  Standisli 

141 

V.  Hooker 

494 

Baldwin's  Appeal                   179, 

180.  181 

V.  Jesus  College 

473 

Balme's  Goods 

61 

7'.  Kohler 

117 

Bancroft  7'.  Andrews 

128 

T.  Partington 

130 

Bane  7'.  Wick 

454 

7'.  Robins 

490 

Bank  of  Ireland  7'.  McCarthy 

490 

At  well  V.  Helm 

'37 

Bank  v.  Dudley 

353,  509 

Aubuchon  v.  Lory 

509 

V.  Gibbs 

428 

Aurand  v.  Wilt 

(^3 

Bank  of  Port  Gibson  v.  Baugh 

402 

Austin  V.  Austin 

141 

Bank  of  Troy  v.  Topping 

258 

7'.  Lamar 

526,  528 

Bankhead  v.  Hiilibard 

'37 

7'.  Munro              256,  397 

598,  App. 

Banking  Co.  v.  Morehead 

258 

Ake's  Appeal 

5-7 

Banks  v.  Sladen 

487 

Ayling,  Goods  of 

66 

Banta  v.  Moore 

165,  '73 

Ayres  v.  Clinefelter 

46 

Bantz  7'.  Bantz 

526 

V.  Weed 

32,46 

Barasien  v.  Odum 

184,  190 

Barber  7j.  Bush 

106 

V.  Converse 

112 

B. 

Barbour  v.  Robertson 

146 

Barcalow,  Matter  of 

522 

Babbitt  ?'.  Brown 

120 

Barcalow,  AV 

545 

Babcock  v.  Booth 

'95 

Barclay  v.  Cooper 

512a: 

V.  LiUib 

428,  433 

Barclay's  Estate 

422 

TABLE    OF    CASES. 


Bard  v.  Wood 
Harden,  Goods  of 
Hards  7'.  Lamb 
F^arfield  v.  King 
Barker,  Ex  parte 
Barker,  Goods  of 
Barker  v.  Barker 

V.  Comins 

7).  Stanford 
Barksdale  v.  Cobb 
Barnard  v.  Gregory 
Barnard  v.  Pumfrett 
Barnawell  ?'.  Smith 
Barnes,  Goods  of 
Barnes  v.  Brashear 

V.  Hazleton 

"'.  Underwood 
Barnetl  v.  Guilford 
Barney  v.  Saunders 
Barrett  v.  Barrett 
Barrington  v.  Tristram 
Barron  v.  Burney 

V.  Vandvert  : 

V.  Lambert 

V.  Rush 
Bartel's  Estate 
Bartholomew  v.  Warner 
Bartlett  v.  Fitz 

V.  Hyde 

V.  Slater 
Barton  v.  Barton 

V.  Cooke 

V.  Higgins 
Barwick  v.  Mullings 
Bass  V.  Chambliss 
Bassett  v.  Granger 
Bassett  v.  McKenna 
Bate  V.  Bate 
Bateman  v.  Margerison 
Batson  v.  Murrell 
Batton  V.  Allen 
Baucus  V.  Stover 
Bauquier,  Re 
Baxter  v.  Baxter 

V.  Buck 

V.  Gray 
Bay  V.  Cook 
Bayard,  Goods  of 
Bayard  v.  Farmers'  Bank 
Bayley  v.  Bailey 
Baylis  v.  Attorney-General 
Beale  v.  Hall 
Beall  V.  New  Mexico 
Beaman  v.  Elliott 
Bean  z'.  Bumpus     93,  112,  1 
Bean  v.  Chapman 

V.  Smith 
Bearzoz'.  Montgomery 


Section 

Section 

522 

Beasley  v.  Howell 

27 

59,  60 

Beaston  ?'.  Farmers'  Bank 

428 

414 

Beattie  v.  Abercrombic 

239 

39' 

Beatty  v.  Dufief 

444 

109,  160 

Beaty  v.  Gingles 

256,  395.  397 

112 

Beck  V.  Rebow 

227 

325 

Becker  v.  Hager 

522 

79 

V.  Selover 

239 

146 

Bective  v.  Hodgson 

217 

144 

Bedell  v.  Constable 

43 

186 

Beebe,  Matter  of 

270 

488 

Beebe  v.  Estabrook 

500 

438 

Beecher  v.  Buckingham 

239,  240 

42 

Beekman  v.  Cottrell 

370 

175 

Beene  v.  Collenberger 

346,  361 

500 

Beer,  Goods  of 

43 

496 

Beers  v.  Shannon 

24, 170 

267 

V.  Strohecker 

265 

545 

Belcher  v.  Belcher 

407 

173 

Bell,  Goods  of 

36 

480 

Bell  V.  Armstrong 

69 

184 

V.  Briggs 

422 

93,  410,  411 

V.  Hewitt 

368 

400 

V.  Speight 

408,  409 

397 

V.  Timiswood 

104 

70 

Bellamy,  Goods  of 

•39 

361 

Bellerjeau  v.  Koits 

532 

544 

Bellinger  v.  Ford 

194,  195 

120 

Bellows  V.  Goodal 

189 

481 

Bells  7A  Nichols 

173 

528 

Belton,  Re, 

244 

490 

Belvin  v.  French 

398 

173.  179 

Bemis  v.  Bemis 

419 

62 

Benlow,  Goods  of 

69 

310 

Bench  v.  Biles 

5'2 

208 

Bender  v.  Diet  rick 

474 

220,  221 

Bengough  v.  Edridge 

465 

545 

Bennett,  Ex  parte 

358 

195 

Bennett  v.  Bennett 

499 

389 

71.  Hannifin 

524 

500 

V.  Ives 

184,424 

208,  542 

Benson  v.  Benson 

427 

ZZ 

V.  Maude 

478 

428 

V.  Rice 

340 

288,  293 

Bent's  Appeal 

60,  85,  463 

368 

Berg  V.  Radcliff 

428 

500 

Berger  v.  Duff 

268 

127 

Berkey  v.  Judd 

142,  420 

35o>  351 

Bermingham  v.  Wilcox 

402 

20,  171 

Berry  v.  Bellows 

154.  155 

38 

V.  Hamilton 

2,1, 

f>     Toif 

401 
356 

160 

408 

V,  1  an 
Betts  V.  Blackwell 

"^12, 

Bewacorne  v.  Carter 

46 

20,  206,  207 

Biddlez/.  Wilkins 

173 

160 

Bigelow  V.  Bigelow 

160 

359 

V.  Morong 

502 

239 

V.  Paton 

204 

XX. Ml 


TABLE    OF    CASES. 


Section 


Billingslea  v.  Henry 

542 

Bodley  v.  McKenney 

137,  324, 

400 

r .  Young 

510 

Bogan  V.  Camp 

341 

BQls  r.  Scott 

I4«. 

'54 

V.  Walter 

536 

Bingham,  AV 

53' 

Bogart  V.  Van  Velsor 

229,  323. 

329 

V.  Crenshaw 

104, 

196 

V.  Hertell 

400 

Binionz'.  Miller 

538 

Bogs  V.  Bard 

292 

Binnemian  f.  Weaver 

106 

Bolingbroke  ?■.  Kerr 

292 

410 

Birch,  AV 

393 

Bollard  v.  Spencer 

291 

Birch  V.  Dawson 

227 

Bolton,  AV 

512/' 

V.   Wright 

374 

Boltwood  v.  Miller 

362 

419 

Bird  V.  Jones 

i59> 

268 

Bomgaux  v.  Bevan 

428 

Birdsall  :■.  Hewlett 

481 

Bonafous  v.  W' alker 

291 

Birkett,  A\ 

484 

Bond,  Goods  of 

"5 

Birkett  v.  Vandercom 

43 

Bonds  V.  Allen 

456 

Biscoe  T'.  Moore 

310 

Boody  V.  Itmerson 

160 

Bishop  t/.  Bishop                    41, 

227 

509 

Boofter  v.  Rogers 

63 

V.  Curphey 

21 1 

Bookman  7\  Smith 

474 

7\  Lalonette 

91 

Boone  7'.  Dyke 

488 

Bizzey  v.  Flight 

62 

Boor  V.  Lowrey 

283 

370 

Black  I'.  Dressell 

509 

Booraem  v.  Wells 

358 

V.  Hurl  but 

3'7 

Booth  V.  Booth 

382 

402 

7:  Whitall 

500 

v.  Radford 

424 

Blacklx)rough  7\  Davis 

'03 

501 

V.  Patrick 

234 

Blackerby  T'.  llolton 

504 

Borden  v.  Jenks 

490 

Blackington  z\  Blackington 

453 

Borneman  v.  Sidlinger 

219 

Blackwell,  Goods  of 

37 

Borer  7/.  Chapman 

446^ 

Blair  v.  Murphree 

226 

Bosie,  Estate  of 

315 

Blake  z:  Blake 

220 

Bosler  v.  Exchange  Bank 

428 

V.  Dexter 

413 

Bostic  V.  Elliott 

406 

?'.  Griswold 

283 

Boston  V.  Boylston 

540 

V.  Knight 

69 

Boston  Packing  Co.  t.  Stevens 

385 

V.  Pegram                      402 

530 

538 

Bothamley  tj.  Sherson 

461 

V.  Ward 

528 

Bothomly  7'.  Fairfax 

426 

Blakely  r.  Smock 

379 

Boughton  V.  Bradley 

91 

Blanchard  -■.  Blanchard 

77 

V.  Flint 

525 

V.  Williamson 

420 

Boulware  v.  Hendricks 

146 

Bland  7:  Umstead 

253 

367 

Bourne  v.  Stevenson 

23O'  234 

.236 

Blank,  Matter  of 

116 

Bovey  v.  Smith 

'9 

Blank's  Appeal 

443 

Bowditch  V.  Soltyk 

487 

Blassingame  v.  Rose 

450 

Bowdoin  v.  Holland      1 5, 

120,  168 

,  186 

Blethen  --.  Towle 

227 

Bowen  v.  Montgomery 

308 

Bligh  V.  Brent 

202 

V.  Phillips 

'57 

Bliss  v.  Seaman 

409 

V.  Richardson 

403 

Blisset,  Goods  of 

127 

V.  Shay 

34' 

Block,  Succession  of 

ICO 

Bowers  v.  Bowers 

112 

Blood  V.  French 

361 

V.  Keesecker 

200 

Bloodworth  7'.  Stevens 

216 

V.  Smith 

473 

Bloomer  7\  Bloomer 

542 

V.  Williams 

428 

Bloomfield  v.  Ash 

140 

Bowerson's  Appeal 

99 

Blount  V.  Davis 

358 

Bowes,  AV 

224 

Blower  v.  Morret 

490 

Bowlby,  Goods  of 

'39 

Bloxham  v.  Crane 

244 

Bowles  V.  Harvey 

23> 

Blue  T.  Marshall 

386,  387 

Bowman  7'.  Raineteaux 

245 

Blydenburgh  v.  Lowry 

'73 

V.  Tallman 

256 

liob,  Succession  of 

'37 

V.  Wootton 

3J 

.  '37 

Bolo  7'.  Vaiden 

148 

Boxall  V.  Boxall 

353 

Modger  7'.  Arch 

'95 

Boycez/.  Escofifie 

428 

Bodlei'.  Hulse 

403 

zi.  Grundy 

19 

TABI.K    OF    CASES. 


XXXlll 


Section 


Boyd,  Re 

539 

Briscoe  V.  Tarkington 

107 

Boyd,  Succe.s;>ioii  of 

155 

V.  Wickliffe 

127 

Boyd  7'.  Boyd 

328,  499 

Bristow  V.  Bristow 

480 

7'.  Hawkins 

545 

Brockett  v.  Bush 

387 

V.  Lowry 

434 

Broderick's  Will 

28 

!•.  Uglesby 

387 

Brodie  v.  Barry 

19 

169 

Boyd's  Appeal 

99 

Brokaw  v.  Brokaw 

457 

Boyle,  Goods  of 

46 

V.  Hudson 

470 

Boylstoii  V.  Carver 

2\i,.  215 

Bromage  v.  Lloyd 

362 

Brackenbury,  Goods  of 

"5.  '39 

Bromley  v.  Miller 

57 

Brackenridge  v.  Holland 

yy^ 

Brooks  V.  Brooks 

230 

Brackett  v.  Griswold 

-«3.  373 

V.  P'loyd 

289 

293 

Brackett  v.  Tillotson           422, 

509,  542 

V.  Mastin 

410 

Bradbury  v.  Morgan 

366,  367 

V.  Oliver 

518 

Braddock,  Goods  of 

63 

V.  Smyser 

409 

Bradford  -'.  Felder 

120 

V.  Whitmore 

147 

Bradley  v.  Bradley 

129 

Brooksbank  v.  Smith 

391 

V.  Brigham 

379 

Broome  v.  Monck 

377 

427 

z/.  Commonwealth         141 

160,  192 

Brophy  v.  Bellamy 

475 

V.  Heath 

25s 

Broughton  v.  Bradley 

153 

V.  Missouri  R. 

160 

Brown,  Ex  parte 

140 

407 

V.  Norris 

390 

Brown,  Goods  of 

39 

V.  Simonds 

516 

Brown  v.  Anderson 

70 

Bradley's  Goods 

36 

V.  Armistead 

407 

Brady  v.  Shiel 

437 

V.  Benight 

186 

Brake,  Goods  of 

38 

V.  Brown        146,  160,  174 

490 

526 

Bramhall  v.  Ferris 

217 

V.  Campbell 

324 

Branch  v.  Branch 

289,  291 

v.  Clark 

82 

Branch  Bank  v.  Hawkins 

418 

z>.  Dean 

284 

V.  Rhew 

420 

V.  Durbin 

184 

V.  Wade 

zy 

V.  Evans 

251 

257 

Brandenburg  v.  Thorndike 

456 

71.  Farndell 

492a 

Brandon  v.  Brown 

527 

7'.  Finley 

297 

V.  Judah 

308 

V.  Farnham 

257 

Brant  v.  Willson 

82 

V.  Gellathy 

324 

479 

Brasfield  v.  Cardwell 

409 

V.  Gibson 

194 

Brasheara.  Williams 

506 

r.  Hay 

102 

Brassey  v.  Chalmers 

405 

-A  Hobson 

407 

Brassington  v.  Ault. 

403 

V.  Kelsey 

509 

Brattle  v.  Converse 

128 

-'.  Leavitt 

189 

194 

Brazeale  v.  Brazeale 

308,  526 

V.  Litton 

323 

Brazen  n.  Clark                      145, 

328,  406 

V.  McCall 

545 

V.  Dean 

451 

7'.  Murdock 

148 

Breen  v.  Pangborn 

160 

V.  Porter 

419 

Brenchley  v.  Lynn 

126 

V.  Public  Administrator 

428 

V.  Still 

60 

V.  Reed 

539 

Brett  V.  Brett 

66,76 

7'.  Ryder 

^?>S 

Brewster  v.  Brewster 

389.  543 

V.  Sullivan 

193 

V.  Kendrick 

419 

7'.  Sumner 

434 

Brick's  Estate                           54 

5-6,  528 

T.  Temperly 

482 

Brier,  Re 

321 

V.  Walker 

190 

Briggs,  Goods  of 

43 

V.  Weatherby 

147 

V.  Breen 

256 

Brown's  Accounting 

402 

V.  Rochester 

23 

Brown's  Estate 

104 

V.  Wilson 

389 

Browne  v.  Cogswell 

494 

Brigham  v.  Bush 

456 

V.  Preston 

387 

V.  Maxley 

361 

Browning,  Goods  of 

99 

Bright  V.  Adams 

63 

Browning  v.  Paris 

389 

XXXIV 


TABLE    OF    CASES. 


Browning  v.  Reane 
Brownlee  v.  Lockwood 
Brownson,  AV 

Biubaker's  Appeal  1 1 

1)1  ucf  t:  Bruce 

;■.  Griscom 
Brunk  v.  Means 
Brush  V.  Young 
Brj-an  v.  Mulligan 

v.  Kooks 

-■.  Stewart 

V.  Thompson 
Bryant  v.  Russell 
Buchan  v.  Rinloul 
Buchoz  V.  Pray 
Buck  7:  Johnson 
Buckels  -■.  Cunningham 
Buckley  t/.  Barber 

V.  McGuire 
Buck's  Estate 
Budd  V.  Hiler 

V.  Silver 
Buffalo  Loan  Co.  v.  Leonard 
Buffaloe  v.  Baugh 
Buffum  ?■.  Sparhawk 
Buie  V.  Pollock 
Bulfinch  V.  Benner 
Bulkley  z:  Redmond 
Bull  V.  Sibbs 
Bullock  V.  Rogers 

V.  Wheatley 
Bulmer's  Case 
Burbank  r.  Payne 

V.  Whitney 
Burch,  Goods  of 

/«  re 
Burchmore.  Goods  of 
Burd  7'.  McGregor 
Burdett,  (Joods  of 
Burdick  v.  Garrick 
Burke  --.  Bishop 

7'.  Coolidge 
Burkhead  v.  Colson 
Burks  i:  Bennett 
Burls  7:  Burls 
Burnet  v.  1 1  olden 

7'.  Mann 
Burnett  t.  I'.rian 

V.  Meadows 

7\  Nesmith 
Burnham  v.  Lasselle 
Burnley  v.  Duke 
Burns  7:  Van  Loan 
Burridge  v.  Bradyle 
Burroughs  v.  McLain 
Burrows  v.  Walls 
Burrus  :'.  Roulhac 
Burtch  V.  Elliot 


92,  96, 


95. 


Section 

Section 

98 

Burton  r/.  Hintrager 

214 

413 

7'.  Tunnell 

247 

439 

<■'.  Waples 

118 

153.  404 

Burwell  t'.  Mandeville 

325 

16 

Butler,  Estate  of 

175 

500 

Butler  z:  Butler 

341.  346 

288 

V.  Lawson 

13 

407 

Butler's  Inventory 

234 

355 

Butler's  Succession 

170 

130 

Butson,  jRe 

24,  202,  211 

402 

Buxton  V.  Buxton 

328 

404 

Byde  z'.  Byde 

469 

308 

Byerly  v.  Donlin 

128 

525 

Byers  v.  McAnley 

28 

434 

Byrd,  Goods  of 

77 

173 

Byrd  v.  Gibson 

III 

361 

Byrn?'.  Flemming 

161 

200 

V.  Godfrey 

204 

140 

200 

226 

C. 

no 

491 

Cabanne  v.  Skinker 

177 

488 

Cables  v.  Prescott 

211 

451 

Cadbury  z>.  Duval 

347 

491,  520 

Cady  V.  Bard 

173 

428 

Cagar  v.  Frisby 

361 

1,96,153 

Caig,  £x  parte 

"5 

376 

Cain  V.  Haas 

•15 

200 

C alder  v.  Pyfer 

410 

328 

Caldwell  v.  Caldwell 

515 

380 

Hedges  v. 

148 

362 

V.  Lockridge 

528 

464 

v.  McVicar 

310 

109 

Calhoun  v.  Calhoun 

457 

"3 

Calhoun's  Estate 

317.  321 

'32 

Calkins  v.  Boulton 

329 

528 

7!.  Calkins 

324 

115.  13' 

Call  V.  Ewing 

402 

391 

Callaghan  -■.  Callaghan 

368 

204 

V.  Hill 

330 

431 

Callahan  v.  Griswoid 

116 

488 

V.  Smith 

160 

13 

Calvert  v.  Marlow 

33 ' 

84 

Camden  v.  Fletcher 

193 

426 

Cameron  v.  Cameron 

236,  544 

501 

Camp  V.  Crocker 

464 

391 

Campanari  v.  Woodburn 

367 

23 

Campbell,  Goods  of 

'34 

142,  160 

Campbell,  Ke 

522 

285 

Campbell  v.  Booth 

187 

168.  408 

V.  Brown 

15 

153,  160 

V.  Brueii 

533 

490 

V.  Campbell 

439 

417 

71.  Johnson 

146 

393 

V.  Sheldon 

15.  57,  174 

,  4<o,  411 

71.  Shoatwell 

389 

220 

V.  Wallace 

'5 

TABLE    OF    CASES. 


XXXV 


Section 

Section 

Campfield  v.  Ely 

39« 

Caswall,  /'..»  /'(ir/c 

222 

Canada's  Appeal 

79 

Catchside  t.  Uvington 

236 

Candler  7-.  Tillett 

402 

Catherwood  <'.  Chabaud     293 

409 

411 

('anning,  Goods  of 

117 

Catlett  V.  Catlett 

74 

Cannon  ?'.  Apperson 

422 

Catlin  V.  Wheeler 

13 

v.  Jenkins 

358 

v.  Underhill 

289 

292 

Canover  v.  Canover 

236 

Caton  V.  Coles 

374 

Capehart  t.  Logan 

434 

Caulkins  v.  Bolton 

330 

Carey  z'.  Berkshire  K. 

283 

Cave  ;•'.  Roberts 

497 

Carlisle  t.  Hurley                   276, 

290 

291 

Cavendish  z'.  Fleming 

526 

Carlon,  Succession  of 

iiS 

Cayuga  Co.  Bank  z'.  Bennett 

401 

Carmichael  t'.  Carmichael 

187 

t'entral  Bank  v.  Little 

428 

7>.  Ray 

164, 

165 

Chadbourn  z'.  Chadbourn 

386,  387 

Carnes  v.  Crandall 

428 

Chalk  V.  McAlily 

284 

Carnochan  7/.  Abrahams 

196 

Challen  v.  Shippam 

322 

Carow  V.  Mowatt 

107, 

428 

Chamberlain  v.  Dunlop 

367 

'375 

Carpenter  7'.  Cameron 

36 

z'.  Williamson 

280 

V.  Denoon 

57 

Chamberlin  v.  Wilson 

95 

V.  Fopper 

213 

Chamber's  Appeal 

308 

7'.  Going 

190 

Chambers  z'.  Bicknell 

"3 

v.  Gray 

154 

z'.  Minchin 

402 

7'.  Jones 

112 

"5 

z:  Shaw 

460 

Carr  v.  Estabrooke 

469 

z'.  Smith 

390 

V.  Lowe 

181 

Champion  z'.  Brown 

218 

7J.  Roberts 

277, 

300 

Chandler  zi.  Batchelder 

477 

Carrigan  v.  Semple 

178 

z'.  Davidson 

193 

Carrol  zf.  Bosley 

247 

z'.  Schoonover 

352 

356 

Carroll  v.  Carroll                      55,  88 

160 

Chapin  z>.  Hastings 

128 

V.  Connet                         43, 

236 

408 

Chaplin  z'.  Burett 

385 

V.  Stewart 

402 

Chapman,  /Ce 

329 

Carrollton  v.  Rhomberg 

370 

Chapman  z'.  Esgar 

221 

Carron  Iron  Co.  v.  Maclaren 

•5 

178 

z'.  Fish 

173 

Carruthers  v.  Corbin            428, 

441, 

541 

z'.  Holmes 

285 

Carson  v.  Carson 

485 

T.  Robertson 

19 

Carte  ?/.  Carte 

42 

zj.  Speller 

36' 

Carter  z/.  Anderson 

156 

Charles  z'.  Jacoli 

208 

z>.  Cutting 

402 

Charlton's  Appeal 

526 

v.  Engles 

420 

Charlton's  E.state 

308 

7'.  Pastes 

290 

Charter  v.  Charter 

14 

v.  Greenwood 

120 

Chase  v.  Fitch 

370 

ZK  Hammet 

376 

V.  Kittredge 

77 

V.  Hinkle 

456 

z'.  Lockerman 

214 

V.  Manufacturer's  Bank 

349 

352 

7'.  Redding 

219 

zj.  Robbins 

1 86 

7'.  Webster 

453 

z/.  Trueman 

408 

Cheatham  z'.  Burfoot 

40S 

Carthey  t.  Webb 

1 II 

Cheely  7-.  Wells 

288 

Caitwright's  Case 

132 

Cheetham  z'.  Ward 

20S 

Casez/.  Abell 

402 

Cheever  v.  Judge 

'5' 

Case's  Appeal 

403 

Chelsea  Water  Works  7'.  Cow 

:)er 

476 

Casement  v.  Fulton 

77 

Cheney  v.  Cheney 

455 

Casey  v.  Gardiner 

50 

1 12 

v.  Gleason 

284 

295 

Caskie  z'.  Harrison 

210 

325 

Chester  7/.  Urwick 

470 

Cason  V.  Cason 

329 

Chevallier  7'.  Wilson 

54' 

Casoni  7>.  Jerome 

140 

Chew  7/.  Chew 

157 

Caspenson  z'.  Dunn 

485 

Chew's  Appeal 

405 

Cassedy  z'.  Jackson 

32 

106 

Chew's  Estate 

401 

Cassel's  Estate 

402 

Chicago  R.  z'.  Gould 

109 

Castle  V.  Warland 

322 

V.  O'Conner 

283 

TABLE    OF    CASES. 


Section 

Section 

Child  i:  Gratiot 

109 

Clarke  -,'.  Wells 

128 

I'.  Thorley 

402 

V.  West 

146 

Childs  I'.  Monins 

258 

Clarkington,  Goods  of 

116 

V.  Updike 

387 

Classon  v.  Lawrence 

2S8 

Childrc-ss  v.  Bennett 

163 

167 

Claudel  v.  Palao 

45'- 453 

Chisholm  i:  Lee 

324 

Clauser's  Estate 

538,  545 

Choate  -■.  Arrington 

146 

Claussen  v.  Lufrenz 

186 

Chouteau  i'.  Suydam 

387 

395 

V.  McCune 

420 

Christian,  Goods  of 

77 

Clay,  AV 

511 

Christian  v.  Morris 

258 

Clay  V.  Guiley 

473 

Christopher  v.  Cox 

32 

V.  Willis 

217,  221 

Christy  v.  McBride 

321 

Clayton  v.  Akin 

490 

-■.  Vest 

25 

V.  Lord  Nugent 

38 

Churchill  v.  Hobson 

322 

335 

V.  Somers 

466,  542 

<'.  Prescott 

III 

174 

V.  Wardwell 

506 

Cincinnati  R.  t'.  Heaston 

418 

Cleaves?'.  Dockray 

138,  143 

Citizens'  Bank  v.  Sharp 

176 

elements.  Hawkins 

260 

Clack  -■.  Holland 

30S 

Clement's  Appeal 

526,  544 

Clapp  7'.  Fullerton 

81 

Cleveland  ?■.  Harrison 

362 

f.  Ingrahani 

222 

V.  Quilt y 

1 16,  151,  152 

r.  Meserole 

528 

Cleverley  7'.  Gladdish 

'39 

V.  Stoughton 

194 

201 

Clifton  V.  Haig 

390 

V.  Walters 

385 

Cline's  Appeal 

541 

Clare  v.  Hedges 

^33 

Clingman  v.  Hopkie 

428 

Clark,  Estate  of 

538 

Clopton  7'.  (jholson 

256 

Clark,  Goods  of 

"5 

Clough  7'.  Bond  98, 32 1 ,  328 

336.3.38.496 

Clark  V.  American  Surety  C 

0. 

147 

V.  Dixon 

402 

V.  Goods  of 

"5 

Clowes  V.  Hilliard 

5'9 

V.  Bettelheim 

509 

Coates  V.  Coates 

470 

z>.  Blackington   19,  24,  1 

75'  '79 

358 

V.  Mackey 

.78 

f.  Burnside 

227 

V.  Muse 

428 

V.  Carroll 

373 

Cobb,  Estate  of 

70 

V.  Clark 

98, 

402 

Cobb  V.  Beardsley 

129 

V.  Clay 

522 

V.  Brown 

120 

7'.  Clement 

"''.^ 

167 

V.  Muzzey 

509 

?■.  Cress 

526 

V.  Newcoml)  100,  iii 

112, 113,115 

7'.  Davis 

4  JO 

434 

Cobbett  7'.  Clutton 

272 

7'.  Eubank 

522 

Cobel  V.  Cobel 

2l6 

T.  Hardman 

391 

Coburn  v.  Harris 

390^ 

•■.  Knox 

538 

V.  Loomis 

526,  530 

:•.  McClellan 

279 

Cochran  v.  Thompson 

I  20,  40Q,  410 

7'.  Niles 

'37 

Cochrane  v.  Robinson 

'   476 

7'.  Pishon 

160 

'95 

Cock  V.  Carson 

262,  516,  410 

V.  Piatt 

^45 

7'.  Cooke 

63 

V.  Sewell 

481 

Cocke  V.  Trotter 

395 

V.  Sw-ift 

285 

Cockerill  -'.  Kynaston 

291 

7'.  Taint er 

49 

Cockleton  v.  Davidson 

173 

7'.  Wright 

84 

Cockroft  V.  Black 

439 

Clarke  v.  Alexander 

396 

Cocks  7'.  Haviland 

402 

7'.  Blount 

402, 

542 

Cocks  T.  Varney 

177 

7'.  Chapin 

141, 

144 

Codding  ?'.  Newman 

50 

V.  Clarke 

32 

Coddington  t.  Bispham 

478 

7'.  Clay 

120 

Coffee  V.  Ruffin 

43'.  54-: 

7'.  Hilton 

494 

7'.  Cottle 

1 53.  386 

7'.  Jenkins 

402 

7'.  Talman 

375 

7'.  Ransom 

6 

^82 

(ohea  T.  Johnson 

407.  4 '3 

: .  Sinks 

508 

V.  State 

142 

V.  Tuftb 

249. 

534 

Coit  V.  Conistock 

465 

1 

rABL 

E    0 

F    CASES. 

.X.X.WII 

Section 

Section 

Coke  V.  Colcroft 

367 

Conover  v.  Conover 

236 

Coker  v.  Crozier 

280 

Converse  v.  Starr 

57 

Colbert  7j.  Daniel 

173 

520 

Conwill  V.  Conwill 

504 

Cole  V.  Dial 

153 

Cook  V.  Carr 

'05 

V.  Elfe 

450 

7'.Collingbridge 

330 

537 

V.  Miles 

400 

V.  Cook 

274 

z'.  Wooden 

•34 

V.  Gregson 

221 

Coleby  t.  Coleby 

422 

V.  Holmes 

411 

Colegrave  r'.  Dias  Santos 

227 

V.  Lanning 

481 

Coleman  7:  Raynor 

156 

71.  Sanders 

189 

V.  Smith 

-M7 

V.  Sexton 

453 

Coles,  Goods  of 

63 

'  '5 

Cooke  V   Meeker 

479 

Coles  T'.  Trecothick 

74 

Cool  71.  Higgings 

422 

Colesbeck  v.  Peck 

426 

Coombs  V.  Coombs 

"5 

Colgan's  Estate 

200 

Coope  7).  Carter 

518 

Collamore  v.  Wilder 

251 

417 

V.  Lowerre 

J  04 

Collen  7'.  Wright 

372 

Cooper  V.  Brockett 

77 

Collier  ?■.  Collier 

217 

z>.  Cooper            151,  i 

54,  157,  3I7CJ, 

v.  Jones 

189 

493 

507 

V.  Rivaz 

20 

V.  Day 

468 

Collins  V.  Bankhead 

167 

7'.  Felter 

428 

7'.  Crouch 

427 

7'.  Hayward 

238 

7/.  Hollier 

522 

V.  Maddox 

98 

v.  Spears 

107 

V.  Thornton 

485 

V.  Tilton 

526, 

542 

V.  White 

205 

Collinson  v.  Lister 

352 

7'.  Williams 

315 

Colston  z>.  Morris 

478 

Cooper's  Goods 

85 

Colt  7:  Lesnier 

352 

C cover's  Appeal 

98 

Coltart  V.  Allen 

152, 

153 

Cope  V.  Cope 

132 

Colton  7'.  Colton 

28 

Copeland  ?'.  McCue 

310 

324 

Coltraine  v.  Spurgin 

428 

V.  Stephens 

376 

Columbus  Ins.  Co.  v.  Humph 

-ies 

335 

Copis  V.  Middleton 

427 

Colvert  z'.  Peebles 

235 

Copp  V.  Hersey 

534 

Colvin,  A'e 

140 

Coppin  V.  Coppin 

490 

.491 

Colvin  7'.  Owens 

363 

Core  V.  Spencer 

69 

Colwell  7'.  Alger 

138 

Cordeux  ?■.  Tra.sler 

no 

Commercial  Bank  t.  Slater 

434 

Cornell  v.  Gallaher 

104 

Commissioners,  Ex  parte 

116 

Corner  v.  Shew            257, 

396,  397 

398 

Commissioners  v.  Greenwood 

428 

Cornes  v.  Wilkin 

418 

Commonwealth  v.  Blanton 

504 

Cornish  z'.  Wilson 

146 

V.  Bryan 

230 

Cornpropst's  Appeal 

104 

V.  Duffield 

Cornthwaite  v.  Nat.  Bank 

258 

V.  Higert 

146 

Corsitt  V.  Bi.scoe 

428 

433 

V.  Logan 

428 

Cortelyou  v.  Lansing 

305 

V.  Mateer 

47 

Corwine  v.  Corwine 

5" 

V.  McAUster 

329 

Cote  V.  Dequindre 

210 

V.  Taylor 

145 

Cotham  v.  Britt 

500 

Comstock  V.  Crawford 

156 

Cotter's  Estate 

"3 

V.  Hadlyme 

73 

Courtenay  v.  Williams, 

470,  491 

508 

Conant  v.  Kent 

502 

Cousins  V.  Jackson 

527 

Condit  V.  Winslow 

542 

582 

Cousins,  Re 

If^?, 

Conger  v.  Atwood 

457 

510 

Cover  V.  Cover 

412 

Conkeyz/.  Dickinson 

247 

Coverdale  v.  Aldrich 

204 

Conklin  v.  Egerton 

407 

Cowden  v.  Jacobson 

180 

Conly  V.  Conly 

282 

Cowdin  v.  Perry 

527 

Connell  v.  Chandler 

456 

Cowell  v.  Watts 

292 

Connelly's  Appeal 

-30 

316 

Cowles  7'.  Hayes 

414 

Conner  v.  Mclhainc 

406 

532 

Cowley  7'.  Kna[i]) 

63 

xxxvm 


TABLE    OF    CASES. 


Cowling  V.  Justices 
Cox,  Creditors  of 
Cox  V.  Cox 

V.  John 

f.  Joseph 

V.  McBurney 

I/.  Morrow 
Craddock  :•.  Stewart 
Crafton  :■.  Beal 
Craig  :■.  Leslie 
Craig  :•.  McCehee 
Craige  : .  Morris 
Craigic  r .  Lewin 
Crain  f.  Barnes 
Crakcr  r .  Dillon 
Cram  z\  Barnes 

V.  (.Ireen 
Crandall  i'.  Shaw 
Crane  v.  Guthrie 
Crapo  V.  Armstrong 
Crashin  f.  Baker 
Cravath  v.  Plympton 
Cravens  f.  Logan 
Ciawford  -'.  Blackburn 

f.  Bloss 

-'.  Elliott 

V.  Graves 

V.  Redus 

V.  Whittal 
Cray  v.  Willis 
Crayton  v.  Munger 
Creamer  i-.  Waller 
Creath  v.  Brent 
Creed  v.  Creed 

V.  Lancaster  Bank 
Cresse,  Matter  of 
Creswick  v.  Woodhead 
Cringan,  Goods  of 
Crippen  r.  Dexter 
Crisman  v.  Beasley 
Crispin  ?'.  Doglioni 
Crist  7'.  Crist 
Crocker  v.  Dillon 

V.  Smith 
Croft  7'.  Lyndsey 

7'.  Williams 
Crofton  Ti.  Crofton 

V.  Ilsley 
Crolly  V.  Clark 
Cronan  v.  Cutting 
Crook  V.  Watt 
Crookenden  z'.  Fuller 
Crosby  v.  Covington 

V.  Crosby 

V.  Gilchrist 

V.  Leavitt 

J'.  Mason 
CrosH  V.  Brown 


1 6,  17, 


Section 
142 


441 
427 
214 
496 
361 

43 

217 

53^' 
457 
'7 
481 
247 
481 
520 

'35 
216 
422 
193 
385 
411 

346 

457*^ 

264 

173 
526 
291 
488 
361 
230 
128 
490 
500 

•>3 

403 
41 
170 
361 
167,  169 
488 
247 
509 

3'4 

402 
178 

>7 

'9 
385 
498 

22 
500 
^47 
168 

91 

265 

220,  297 


Section 

Crouch  V.  Davis 

469 

Crowder  -•.  Shackelford 

544 

Crowninshield  7\  Crowninshield 

73 

Crozier  v.  Goodwin 

134. 

141 

Crozier,  Re 

'35 

Crum  V.  Bliss 

16 

Crump  V.  W' illiams 

195. 

262 

Cubbidge  v.  Boatwright 

409 

Cullen  V.  O'Hara 

244 

Cummings  v.  Allen 

457 

7'.  Bramhall 

204 

V.  Cummings 

526 

Cunningham  v.  Souza 

137, 

146 

Cureton  v.  Mills 

181 

Curie  V.  Curie 

428 

V.  Moore 

173 

Curley  7'.  Hand 

428 

Curling  v.  Thornton 

171 

Curre  7/.  Bowyer 

277 

Curser,  Re 

32 

106 

Curtis  V.  Bailey 

531 

V.  Brooks 

504 

7'.  Curtis 

85 

7'.  Williams 

IOC,  115 

152 

v.  Vernon 

187 

Curtiss  V.  Beardsley 

150 

Gushing  v.  Ayhvin 

17 

V.  Gushing 

500 

Cutbush  V.  Cutbush 

326 

Cutchin  V.  Wilkinson 

130 

Cutlar  V.  Quince 

129 

Cutler  V.  Howard 

32 

'54 

Cutliff  V.  Boyd 

491 

Cutright  V.  Stanford 

380 

Cutter  V.  Currier 

522 

z'.  Davenport 

164 

Cutting  V.  Tower 

280 

D. 

Dabney's  Appeal 
Daboll  V.  Field 
Dagley  v.  Tolferry 
Dale  V.  Roosevelt 
Dallmeyer,  Re 
Dalrymple  7'.  Gamble 
Damouth  7'.  Klock 
Daniel  v.  Hill 
Dans  V.  Dabergott 
Danzey  v.  Smith 

7).  Swinney 
Darden  v.  Reese 
Dardier  v.  Chapman 
Darke,  /;/  re 
Darke  v.  Martyn 
Darling  n.  Hammer 
Darston  ?'.  Lord  Oxford 


335 
520 

483 
409 

499 
'53 

192,  193 
63 
112 

297,  316 
420 
456 
106 
32 
322 
338 
437 


TABLE    OF    CASES. 


XXXIX 


D'Arusment  v.  Jones 
Davenport    v.  Congregational 
ety 

V.  Devenaux 

V.  Irvine 

V.  Sargent 
David  V.  Frond 
Davidson  v.  Potts 
Davies,  Goods  of 

V.  Bush 

V.  Nicliolson 

V.  Parry 
Davis,  Matter  of 
Davis,  Re 

Davis,  Succession  of 
Davis  V.  Chanter 

V.  Chapman 

V.  Cowden 

V.  Davis 


V.  Estey 

V.  French 

V.  Gaines 

V.  Garr 

V.  Harper 

V.  Inscoe 

V.  Lane 

V.  Marcum 

V.  Miller 

V.  Newman 

V.  Rhame 

V.  Shuler 

V.  Smith 

V.  Stevens 

V.  Swearinger 

V.  Vansands 

V.  Wright 
Davis's  Appeal 
Davone  v.  Fanning 
Dawes,  Goods  of 
Dawes  v.  Boylston 
Day  V.  Day 
^^ean  v.  Allen 

V.  Biggers 

V.  Dean 

V.  Portis 
Deane  v.  Caldwell 
Dease  v.  Cooper 
De  Beauvoir,  Re 
Decker  v.  Elwood 
Deeks  v.  Strutt 
Deering  v.  Adams 
De  Flechier,  Succession  of 
De  Haven  v.  WiUiams 
Deichman,  Goods  of 
Deichman's  Appeal 
Delafield  v.  Parish 
De  Lane's  Case 
Delaney  v.  Noble 


526, 

59.  247, 

15. 

208, 


Section 

55.  91.92 
Soci- 

387,  3S8 
457 
154 
481 

519 
120 

99 
490 
491 
439 
538 
545 
137 
115 
316 
528,  533 
428,  451 
166,  174 
254,  397 
352 
391 
522 

47.  50 
251 

356 

160 

491 

288 

119 

428 

118,  119 

115,  118 

App. 

440 

532 

338 

134 

194,  195 


135. 


375. 


476 

250 

70 

417 

376 

453 

217 

526,  528 

521 

46 

135.  154 
401,  402 

41 
28,  42S 

73 
153 
152 


Delorme  v.  Pease 
Deming  v.  Taylor 
Demond  v.  Boston 
Dennis  v.  Shaner 
Dennison  v.  Talmage 
Denny  v.  Booker 

V.  Faulkner 
Denton,  Re 
Denton  v.  Tyson 
De  Peyster  v.  Clendining 
Deraismes  v.  Deraismes 
Deranco  v.  Montgomery 
De  Rosaz,  Goods  of 
Despard  v.  Churchill 
De  Tastet  v.  Shaw 
Detwiller  v.  Hartman 
De  Valengin  v.  Duffy 
Devane  v.  Royal 
Devaynes  v.  Noble 
Devecmon  v.  Devecmon 
De  Vigny,  /«  re 
Devlin  v.  Commonwealth 
Devling  v.  Little 
De  Witt  V.  Yates 
Dey  V.  Dey 

V.  Codman 
D'Eyncourt  v.  Gregory 
Dickenson  v.  Callahan 
Dickie  v.  Dickie 
Dickinson's  Appeal 
Dickinson  v.  Dickinson 

V.  Naul 

V.  Seaver 
Dickson,  Re 
Dietrich's  Succession 
Dillabaugh's  Estate 
Dilliard  v.  Harris 
Dillinger  v.  Kelley 
Dillon  V.  Coppin 
Di  Sora  v.  Phillips 
Ditchfield,  Goods  of 
Diversey  v.  Smith 
Dix  V.  Burford 

V.  Morris 
Dixon  V.  Buell 

V.  Dixon 

V.  Ramsay 
Doak,  Estate  of 
Doane  v.  Walker 
Dobins  v.  McGovern 
Dodson  V.  Hay 

V.  Samuel 

V.  Simpson 
Doe  V.  Clark 

V.  Cross 

V.  David 

V.  Guy 

V.  Hersey 


Section 
"118 
279 
282 
430 
150 
385 
175 
483 

5'5 

17 

428 

.58 

38 

42 

439 
465 

395.  397 

256 

379 

63 

169 

91,  92,  160 

400 

468 

490 

512^,  539,  542 

227 

542,  543 

504a 

76 

160 

29 

341 
"6,  153 
356 
25 
358.  509 
368 
169 
124 
370 
402 
509 
420 
484 
194 
116 
457 

145 
217 

376 

359 
220 

63 
243 
295 

76 


xi 


TABLE    OF    CASES. 


241 

544 


Doe  r.  McFarland 

i:  Porter  267, 

7:  St  urges 

z:  Vardill 
Dolbeer  z:  Casey 
Dole  z\  Irish 
Donald  v.  McWhorter 
Donaldson,  Goods  of 
Donaldson  z\  Raborg 
Donnell  z'.  Cooke 
Doogan  z'.  Elliott 
Doolittle  Z'.  Lewis 
Dorah  z-.  Dorah 
Doran :'.  Mullen 
Dorchester  z\  Webb 
Door  Z'.  Wainwright 
Dorris  V.  Miller 
Dorseit  z:  Frith 
Dorsey  zk  Dorsey 
Dortch  V.  Dortch 
Dost  Ali  Khan,  Goods  of 
Dougherty  z:  Stephenson 
Douglas  I'.  Cooper 

V.  Eraser 

V.  Satterlee 

V.  New  York 
Dowdale's  Case 
Dower  r.  Leeds 
Dowling  V.  Eeeley 
Downie  :■.  Knowles 
Downward  v.  Dickinson 
Downs  z\  Collins 
Dowse  z:  Coxe 
Dowsett  z/.  Culver 

V.  Gorton 
Doyle  V.  Blake        44,  46,  321,  335, 
Drake  v.  Coltraine 

7'.  Drake 

z:  Greene  ^;^, 

Drayton,  /«  rf 
Drayton  z'.  Grimke 
Drew's  Appeal 
Drew  V.  Gordon 
Drinkwater  i*.  Drinkwater  212, 
Driver  z:  Kiddle 
Drohan  v.  Drohan 
Drubaker's  Appeal 
iJrue  t'.  Haylie 
Drury  v.  Natick 

V.  Smith 
Drybutter  v.  Bartholomew 
Dulx)is'  Case 
Dudley  v.  Sanlxini       358,  422, 

z:  Warde 
Duffy  V.  Buchanan 
Dufour  i>.  Dufour 
Dugan  ?'.  Ilollins  316,  347, 

Duhmc  v.  Young 


'73 

280,  287 

488 

16 
418 
120 
421 

89 
128 
508 
334 

15 
454 

72 

403 

485 

545 
190 
164 

3'7,  322 
169 
251 
169 
258 
402 

116,  146 

175 

84 

146 

540 

"5 

326 

395 

487 

326 

402 

427 

545 

154 

43 

407 

104 

452,  454 

213.509 

I  59,  268 

353 
153 
410 

37,  464 
219 
202 
428 
537, 542 
227 
522 
527 
355 
'54 


Dulaney  v.  Willis 
Duncan,  /ie 

V.  Dawson 

V.  Duncan 

z\  Eaton 

zi.  Gainey 

V.  Jaudon 

V.  Watson 

V.  Watts 
Dunconiniun's  Appeal 
Dunham  v.  Dunham 

V.  Elford 

V.  Millhouse 
Dunlap  .'.  Mitchell 
Dunn,  Ex  parte 
Dunn  V.  Sargent 
Dunn  V.  Deery 
Dunning  v.  Ocean  Nat.  Bank 
Dupuy  V.  Wurtz 
Durffee  v.  Abbott 
Durham,  Estate  of 
Durkin  v.  Langley 
Durnford,  Succession  of 
Duryea  v.  Mackey 
Du  Val  V.  Marshall 
Duvall  V.  Snowdon 
Duvall's  Estate 
Dwight  V.  Mudge 

V.  Newell 

V.  Simon 
Dye,  Goods  of 
Dyke  v.  Walford 
Dyson,  Ke 


Eagle  V.  Fox 

Eames  v.  Hacon 

Eans  V.  Eans 

Earle  v.  Karle 

Eastland  v.  Lester 

East  Tenn.  Co.  ?'.  Gaskell 

Eaton  V.  Benton 

7'.  Cole 

z>.  Walsh 
Eberstein  v.  Camp 
Echols  V.  Barrett 
Eddins  v.  Graddy 
Edelen  v.  I'Melen 
FMen  7'.  Smyth 
Edgar  v.  Shields 
Edmond  zk  Peake 
Edmonds,  Goods  of 
Edmonds  z'.  Crenshaw 
Edmnndvon  r-.  Roberts 
Edwards  z>.  Fi  eeman 

V.  Hall 


'73^ 


'53, 


Section 

430 
'35-370 

468 

451 

5'5 

350,  35' 

410 

490 

532 
150 
488 
221 
358 
454 
201 

258 

214,  408 

17,  20 

420 

347 
422 
440 
414 
179 
138 
490 

375 
400 

154 

32 

117 

5" 


292 
174,  176 
27c 
321,  402 
200 
258 
469 
386 
208 
48cS 

'37,  153 
42S 

54',  542 
470 
504 

321 
66 

400,  402 
'53 

4M5,  499 
461 


TABLE    OF    CASES. 


xli 


Edwards  v.  Harben 

V.  McGee 

V.  Smith 
Egerton  v.  Egerton 
Egreniont  ?■.  Thompson 
Ehlen  v.  Ehlen 
Eidenmuller's  Estate 
Eisenbise  v.  Eisenbisc         1 20, 
Ela  V.  Edwards 
Elbert  v.  O'Neil 
Elder  v.  Littles 
Eldridge  v.  Eldridge 
Elfe  :■.  Cole 
Elgutter  r.  Missouri  R. 
Ellicoit  V.  Chamberlain 
Elliott  V.  Elliott 

V.  Gurr 

V.  Kemp  244, 

V.  Mayfield 

7).  Merriman 
Elliott's  Succession 
Ellis,  Ex  parte 
Ellis  V.  Carlisle 

V.  Davis 

V.  McGee 

V.  Merriam 

r.  Walker 

V.  Witty 
PLllmaker's  Estate 
Elme  V.  Da  Costa 
Elmendorf  v.  Lansing 
Elmer  v.  Kechele 
Elrod  V.  Alexander 
Elwes  7'.  Maw 
Elwood  ('.  Diefendorf 
Ely  V.  Horine 

V.  Williams 
Emerson,  Appellant 
Emerson  v.  Bowers 

V.  Thompson 
Emery  v.  Batchelder 
Emery  v.  Berry 

V.  Hildreth 
England  v.  Newell 

V.  Prince  George's  Vestry 

V.  Tredegar 
English  V.  Harvey 

V.  Horn 

V.  McNair 
Enicks  v.  Powell 
Enloe  V.  Sherrill 
Ennis  v.  Smith 
Eno  V.  Cornish 

Enohin  v.  Wylie  19,  164, 

Epping  V.  Robinson 
Eppinger  v.  Canepa 
Erwin  t'.  Branch  Bank 
Eshleman's  Appeal 


Section 

186 

455 

63 

219,  542 

295 

99.  153 

305 

269,  276 

17S,  179 

457 
189 
467 

451 
160 

48 
488 

98 
248,  409 

'45 

357 

423,  424 

418 
28,  352 
187 
254 
461 
141 
'35 
115 
403 
104 
281 
227 
401 

358 
362 

545 
154 
401 
490 
184,  195 

24 
402 

459 
476 

538 

356 

32,  316 

148 

65 
16 

442 

167,  169 

228 

545 
418 

545 


132, 


104, 


Eubanks  v.  Dodds 
Evans  v.  Arnold 
V.  Blackiston 
V.  Evans 
V.  Fisher 
V.  Foster 
V.  Gordon 
V.  Halleck 
7'.  Inglehart   2 
V.  Roberts 
V.  Tatem 
V.  Tyler 
Evans,  Ke 
Evansville  Ice  Co. 
Evarts  v.  Nason 
Evelyn,  Ex  pcwte 
Evelyn  v.  Evelyn 
Everett  v.  Avery 
Event,  Matter  of 
Ewer  V.  Corbet 
Ewers  v.  White 
Ewin,  ///  re 
Ewing  V.  Ewing 

V.  Moses 
Eynon,  Goods  of 
Eyre  v.  Cox 
V.  Higbee 


Section 

252,  281 

73 
407 

73.  347 
49' 
490 
289,  292,  293 
542 
324.  479.  480,  506 
226 
173 
2Z 
346 
19 
545 
134 
103 
428 
218 
343 
432,  491 
175 
24,  169 
520 
77 
519 
205 


7'.  Windsor 


Fairbairn  v.  Fisher 

33 

Fairbanks  v.  Hill 

98 

Fairer  v.  Park 

462 

Fairfax  v.  Fairfax 

137 

389 

Fairman's  Appeal 

422 

Faler  v.  McRae 

223 

Fallon  V.  Childester 

160 

Fambro  v.  Gault 

346 

Farnum  v.  Bascom 

461 

Farr  v.  Newman 

243. 

352 

Farrall  v.  Shea 

286, 

373 

Farrelly  v.  Ladd 

385 

Farrow  v.  Wilson 

278 

Farwell  v.  Jacobs 

43. 

407 

527 

Faulkner  v.  Faulkner 

400 

401 

Fawkes  v.  Gray 

478 

Fay  V.  Cheney 

214 

V.  Fay 

509 

V.  Haven         18,  167, 

174. 

179 

181 

V.  Hollo  ran 

216 

V.  Muzzey              227, 

408, 

409 

509 

Fellows  V.  Lewis 

178 

V.  Little 

500 

7'.  Smith 

456 

Feltz  V.  Clark 

141 

Fenlay  v.  Chirney 

280 

Fennimore  v.  Fennimore 

402 

xlii 


TABLE    OF    CASES. 


Section  | 

Section 

Feray's  Succession 

141 

Foley  V.  Bushway 

422 

Ferebee  v.  Baxter 

409 

f^oltz  V.  Hart 

478 

Ferguson  v.  Barnes 

189 

V.  Pro  use 

154,  216 

V.  Collins 

106 

Fontaine  r'.  Tyler 

461 

V.  Glaze 

241 

Fonte  V.  Horton 

402 

V.  Morris 

173 

Foote,  Appellant 

461 

Ferlay  v.  Chirney 

280 

Foote  V.  Colvin 

226 

Fernandez,  Re 

3-7 

Forbes  v.  Peacock 

405 

Fernie,  Jn  re 

3- 

r.  McHugh 

146 

Ferrie  v.  Public  Administrator 

108, 

Ross 

335 

116, 

118 

Ford  V.  Exempt  Fire  Co. 

509 

Ferrin  v.  Myrick 

398, 

422 

V.  Ford 

f'5.  543 

Ferris  v.  Ferris 

'55 

V.  Russell 

J  56,  318,349 

Ferry  v.  Laible 

256 

V.  Teagle 

84 

Fessenden's  Appeal 

515 

V.  Westervelt 

490 

Fetrow  v.  Fetrow 

226 

Foreign  Missions,  /;/  re 

128 

Field  V.  Gibson 

173. 

184 

Forney  v.  Benedict 

389 

V.  Mostin 

469 

Forniquet  v.  Forstall 

409,  410 

I'.  Schieffelin                 350, 

35-- 

359 

Forsyth  v.  Burr 

230 

V.  Van  Cott 

142 

V.  Ganson 

401 

Fielder  v.  Hanger 

130, 

507 

Fosbrook  v.  Balguy 

330 

Fields  V.  Bush 

509 

Foster's  Appeal 

84,  214,  217 

V.  Wheatley 

428 

Fester  v.  Bailey 

409 

Fillyan  v.  Laverty 

419 

V.  Banbury 

76 

Finch  V.  Ragland 

233' 

439 

V.  Bates 

195 

V.  Rogers 

488 

V.  Brown 

160 

Finlay  v.  Chirney 

370 

V.  Commonwealth 

94. 120 

Findlay  v.  Trigg 

444 

V.  Elsley 

39 

Findley  v.  Gidney 

420 

T'.  Fifield 

200,  451,  507 

Finn  v.  Hempstead 

128 

409 

V.  Foster 

64,  449 

Fiscus  7'.  Fiscus 

491 

V.  Starkey 

389 

Fisher,  Ke                               82, 

122 

142 

V.  Stone 

545 

V.  Bassett 

160 

Foteaux  v.  Lepage 

216,  509 

V.  Dixon 

227 

Fowle  V.  Thompson 

334 

V.  Mossman 

390 

Fowler  v.  Colt 

481 

Fisk  V.  Cushman 

457 

V.  James 

439 

V.  Norvell 

'34 

-'.  Kell 

98 

Fite  V.  Beasley 

46s 

Fowler  v.  True 

390 

Fitzgerald's  Estate 

543 

Fox,  Matter  of 

459 

Fitzhugh  V.  Fitzhugh 

257 

P'ox  V.  Carr 

24,25 

Fitzsimmons  v.  Cassell 

405 

V.  Van  Norman 

184 

F'landers  v.  Clarke 

405 

?"ranklin  v.  Depriest 

142 

V.  Flanders 

357 

358 

V.  Franklin 

152 

V.  Lane 

528 

V.  Low 

370 

Fleece  v.  Jones 

527 

Frary  v.  Booth 

443 

Fleming  v.  Buchanan 

222 

Eraser,  Goods  of 

36 

V.  Chunn 

216 

Frazer,  Re 

541 

Flemings  v.  Jarrat 

186 

Frazer  v.  Fulcher 

92 

Fletcher  v.  Ashburner 

217 

V.  Page 

494 

V.  Weir 

146 

409 

Frazier  v.  Frazier 

140,  142,  146 

Flintham's  Estate 

421 

Freakley  v.  Fox 

208 

Flitner  ?■.  Hanley 

423 

Freeman  v.  Faislee 

518 

Flood,  Matter  of 

439 

V.  Kellogg 

:!>7>^  '37,  154 

Flood  V.  Pilgrim 

510 

V.  Rhodes 

522 

V.  Strong 

5" 

Freemantle  v.  Taylor 

474 

Flora  V.  Mennice 

'35 

Freke  v.  Lord  Carbery 

169 

Floyd  V.  Herring 

'53 

French  7'.  ("urrier 

346 

I'Ogg  ^-  Hoi  brook 

422 

V.  French 

63 

TABLE    OF    CASES. 


xl 


111 


Section 

Section 

Fretwell  v.  Lemore               1 20 

165 

174 

Gates  V.  Whetstone 

308,  316 

V.  Stacy 

490 

Gatfield  v.  Hanson 

195 

Frew  V.  Clarke 

63 

Gatti,  Goods  of 

169 

Frey  v.  Eisenhardt 

326, 

446^ 

Gaunt  V.  Tucker 

219 

V.  Frey 

324 

Gay  V.  Lemle 

190,  435 

Frick's  Appeal 

109 

"5 

V.  Minot 

160 

Frisby  V.  Withers 

32 

413 

Gayle,  Succession  of 

251 

Frith  V.  Lawrence 

3'o 

Gaylord's  Appeal 

77 

Fromberger  v.  Griener 

213 

Geddis  v.  Irvine 

403 

Fross's  Appeal 

526 

Gee  V.  \'oung 

226 

Frost  V.  Uenmaii 

545 

Geiger  v.  Kaigler 

387 

Frey  v.  Eisenhaich 

326 

Genet  v.  Tallmadge 

483 

Fry,  Goods  of 

36 

George  v.  Baker 

400 

Fry's  Will 

78 

V.  George 

60,  67,  85 

Frye  z/.  Crockett                   140 

142 

143 

V.  Goldsby 

488 

V.  Kimball 

154 

V.  Watson 

23 

Fryer  v.  Ward 

461 

Georgetown  College  v. 

Browne   32,  113 

Fuentes  v.  Gains 

59 

Gerrish  v.  Nason 

73 

Fuguet's  Will 

74 

Gerry,  Re, 

479 

Fuhrer  v.  State 

503 

504 

Geyer  v.  Snyder 

348 

Fuller,  Ex  parte 

160 

Ghost  V.  Waller 

321 

Fuller  V.  Redman 

426 

Gibbens  v.  Curtis 

511 

Fulton  V.  Andrew 

85 

V.  Peeler 

297 

Fyson  v.  Chambers 

201 

Gibblett  v.  Read 

zoo 

V.  Westrope 

69 

Gibbons  v.  Riley 
Gibbs,  Goods  of 
Gibson  v.  Bolt 

42 
66 

479 

G. 

V.  Farley 
V.  Lowndes 

216 
263 

Gadsden  v.  Lord 

439 

V.  Maxwell 

154 

Gage  V.  Johnson 

291, 

404 

Giddings  v.  Butler 

400 

Gaines  v.  De  la  Croix 

341 

V.  Crosby 

451 

V.  Del  Campo 

428 

Giessen  v.  Bridgford 

123 

(iainey  v.  Sexton 

428 

Gilbert,  Re, 

439 

Gale  V.  Luttrell 

229 

232 

V.  Hales 

437 

V.  Nickerson 

13 

V.  Hard  wick 

408 

Gallant  v.  Bouteflower 

.".92 

V.  Little 

418 

Gallego  V.  Attorney  General 

491 

V.  Welsh 

335 

Gaily,  Goods  of 

169 

Gilbert's  Appeal 

1>1>^^  358 

Gamble  v.  Gamble 

246 

Gilchrist  V.  Cannon 

174 

Gann  v.  Gregory 

86 

Giles,  Re 

439 

Gans  V.  Davergott 

112 

V.  Dyson 

236 

Gardner  v.  Gnatt 

137 

488 

Gilfillen's  Estate 

543 

V.  Gardner             233,  347 

525 

540 

Gilkey  v.  Hamilton 

19s 

Garesche  v.  Priest 

324 

zzz 

Gill,  Goods  of 

lOI 

Garfield  v.  Bemis 

419 

Gillespie  v.  Alexander 

491 

V.  Williams 

285 

Gillett  V.  Needham 

112,  118 

Garland,  Ex  parte 

325 

326 

Gilman  v.  Gilman 

21,  164 

Garner  v.  Graves 

204 

V.  Healy 

400 

V.  Lyles 

186 

V.  McArdle 

219,  220 

Garnett  v.  Macon 
Garrett  v.  Noble 

343 

406 

V.  Wilber 
Gilmore  v.  Hubbard 

325 
387 

253 

V.  Silwell 

520 

Girling  v.  Lee 

221 

Garrison  v.  Cox 

112 

Girod  V.  Pargoud 

402 

Gartshore  v.  Chalie 

467, 

478 

Gist  V.  Cockey 

443 

Garvin  v.  Stewart 

520 

Githens  v.  Goodwin 

53° 

Garwood  f.  GaiT\ood 

525 

Gladsoii  V.  W^hitney 

509 

Gaskins  v.  Hammett 

409 

Glass  V.  Howell 

283 

xliv 


TABLE    OF    CASES. 


Section 

S« 

ction 

Gleaton  -'.  Lewis 

186 

G rattan  ?'.  Grattan 

500 

Glenn  v.  Glenn 

3'o 

Gratz  V.  Bayard 

326 

Globe  Ins.  Co.  v.  Gerisch 

195 

Graves  v.  Flowers 

409 

Glover  -■.  Condell 

467 

V.  Graves 

456 

V.  Glover 

308 

V.  Page 

186, 

193 

V.  1 1  alley 

542 

V.  Spoon 

508 

Glynn's  Estate 

542 

Gray  v.  Armistead 

362 

Godbee  v.  Sapp 

263 

V.  Gray 

67, 

'54 

Godbold  z\  Roberts 

409 

V.  Harris 

408 

tioddard's  Estate 

114,  1  16 

V.  Hawkins 

251 

Goddard  r'.  (Joddard 

99 

V.  Lynch 

308 

Godfrey  'o.  Getchell 

452 

V.  Swain 

209 

Godson  V.  (jood 

378 

Graysbrook  -■.  Fox 

16c 

Golf  V.  Cook 

189 

Grayson  71.  Atkinson 

74 

Golder  v.  Chandler 

202 

Greaves,  Ke 

417 

Gold's  Case 

^iZ^  236 

Greeley's  Will,  ///  re 

72 

Goldsworthy  v.  Crossly 

60 

Green,  Re 

346, 

347 

Goodale  v.  Mooney 

464 

Green  v.  Collins 

205 

Goodall  V.  Marshall 

'5'  174 

V.  Creighton 

387 

V.  Tucker 

179 

V.  Cut  right 

226 

Goode  V.  Buford 

146 

V.  Fagan 

544 

Goodfellow  V.  Burchett 

315 

V.  Givan 

49' 

Goodhue  v.  Clark 

265 

V.  Green 

22,  210 

223 

Goodlett  V.  Anderson 

24,  25 

V.  Hanberry 

321 

Goodman,  Kc 

108 

V.  Howell 

500 

Goodman  v.  Walker 

289,  292 

V.  List  aw  ell 

376 

Goodman's  Trusts,  In  re 

19 

V.  Rugely 

167 

Goodrich  v.  Treat 

98 

Greene  v.  1  )yer 

419 

Goodwin  v.  American  liar 

k       349.  352 

V.  Grimshaw 

542 

V.  Goodwin 

358,  526 

Greenleaf  i'.  Allen 

375. 

376 

V.  Jones 

239,  241 

Greenough  v.  (jreenough 

74 

V.  Milton 

195,  218 

Gregg  V.  Bonde 

438 

Goodyear  v.  Bloodgood 

409 

V.  Currier 

509 

Gordon  v.  Finlay 

404 

V.  Gregg 

533 

V.  Small 

476 

V.  Wilson 

'54 

Gorga.s's  Estate 

467 

Gregory  v.  Ellis 

32 

Gosman,  Re 

117 

V.  Harrison 

408 

Gottberg  v.  U.  S.  Bank 

350 

V.  Hooker 

422 

Gottsberger  v.  Smith 

539 

Gresham  7'.  Pyron 

150 

V.  Taylor 

146 

Greville  v.  Browne 

5" 

(iould  V.  Hayes 

520 

Grew  V.  Bieed 

380 

z.  Mathers 

405 

Grierson,  /;/  re 

1 12 

Gouldsmith  zk  Coleman 

251 

Griffin  v.  Simpson 

522 

Governor  v.  Gowan 

148 

Griffith  V.  Coleman 

97 

V.  Williams 

146 

V.  Simpson 

522 

Graff  am  r-.  Kay 

398a 

V.  Charlotte  R. 

280 

Graff  V.  Castleman 

352 

V.  Frazier 

^7>l 

tiraham  7'.  Davidson 

233 

Grigg's  Estate 

13 

(jrande  v.  Herrera 

118 

(jrigsby  v.  Wilkinson 

538 

(irant,  Goods  of 

43.  >28 

Grim  v.  Carr 

280 

(irant  7<.  Rodwell 

200,  504^ 

(jrimes  V.  Talbert 

9' 

V.  Grant 

474 

Grist  V.  Hodges 

285 

V.  Hughes 

450,  526 

Griswold  v.  Bigelow 

390 

V.  Leslie 

37.40 

V.  Chandler  273,  316, 

355.358 

510, 

7'.  Reese                1 74, 

236,  270,  542 

538 

542 

(jrant  ?'.  Spann 

36 

(Jrote  7'.  I'acB 

i6 

(Jranviile  v.  McXeile 

405 

Groton  v.  McDonald 

7 

4.  79 

(irattan  v.  Appleton 

•7 

V.  Ruggles 

241 

485 

TABI.K    OF    CASES. 


xlv 


Groves  v.  Williams 
Grundy,  Goods  of 
Grymes  v.  Pendleloii 
Guldin's  Estate 
Gulick  V.  Gulick 
(juUedge  z'.  Berry 
(jundry  v.  Henry 
Gunn  V.  Hodge 
Gunning  v.  Lockman 
Gunstan,  Kc 
Gunter  ?'.  Jones 
Gusman's  Succession 
Guthrie  v.  Wheeler 
Guy  T'.  Sharp 
Gwin  V.  Hicks 
Gwynn  v.  Dorsey 


H. 


99. 


Section 

390 
129 
378 
106 

177 
404 

289,  292 

523 

75 

419 

y~ 

3'7,  3'7'' 

468 

226 

356,  542 


Maberman's  Appeal 

537 

Habeshon  ?'.  Vardon 

463 

Haddow  v.  Lundy 

13 

Hadjiar  v.  Pitchey 

•52 

Haell  %'.  Blanchard 

145 

Hagthorp  v.  Hook 

331 

V.  Neale 

410 

Haight  V.  Brisbin 

154 

539 

V.  Hoyt 

282, 

373 

Flaigood  v.  Wells 

157 

Hairland  v.  Trust  Co. 

434 

Hale  V.  Hale 

448, 

451 

V.  Marquette 

515 

Hall,  Goods  of 

408 

Hall,  Succession  of 

78 

Hall  V.  Andrews 

507 

V.  Carter 

401 

V.  Chapman 

346 

V.  Gushing 

•37 

V.  Deatly 

391 

V.  Hall 

208,  242 

525 

V.  Hallett 

358 

537 

V.  Irwin 

407 

n.  Merrill 

434 

7).  Wilson 

434 

Hall's  Appeal 

334 

Hall's  Estate 

308 

Halleck,  Estate  of 

429 

525 

Halleck  v.  Mixer 

280 

7/.  Mass 

346 

Mallet  V.  Bassett 

21 

HallidayT/.  Du  Bose 

'•3 

Hallowell's  Estate 

208 

Hall's  Estate 

510 

Hakey  v.  Reed 

430 

Ham  V.  Henderson 

291 

V.  Kornegay 

409 

I  [amaker's  Estate 

53' 

Haml)erlin  v.  Terry 
Hambly  v.  Trott 
Hamer  7'.  Bethea 
Hamilton,  Matter  of 
Hamilton  v.  Hamilton 

7'.  Wilson 
Hamilton's  Estate 
Hamlin  7'.  Mansfield 
Ilammetl  7'.  .Starkweather 
Hammond,  Goods  of 
Hammond  7'.  Hammond 

7'.  Hoffman 

7'.  Putnam 

7'.  Wood 
Hampson  v.  Physick 
Hancock  7/.  Podmore 
Handley  v.  Heflin 
Handy  ?■.  Collins 
Hankey,  Kc 
Hankins  v.  Kimball 
Hanover,  Re 
Hapgood  V.  Houghton 

-,'.  Jeiinison 
Happiss  V.  Eskridge 
Harcourt  v.  Morgan 
Hardaway  v.  Parham 
Harding  v.  Evans 
Hardinge,  Goods  of 
Hardy  v.  Thomas 
Hare,  Goods  of 
Hare  v.  Nasmyth 
Harker  7'.  Clark 

V.  Whitaker 
Harkins  ?'.  Hughes 
Harlan,  Estate  of 
Harley  n.  Bagshaw 
Harlow  v.  Harlow 
Harness  v.  Green 
Harney  v.  Dutcher 
Harper  v.  Archer 

V.  Butler 

V.  Smith 

7'.  Stroud 
Harrell  7'.  Witherspoon 
Harrington  v.  Brown 

V.  Kateltas 

V.  Price 

V.  Stees 
Harris  v.  Dillard 

V.  Ely 

v.  Ferguson 

V.  Foster 

7'.  Harris 

V.  Harrison 

7'.  Meyer 

V.  Milburn 

7'.  Parker 

V.  Pue 


Section 
153 

217 
119 

80 

285 

454 

326,  417 

418 

'3' 

466,  525 

428,  429 

217 

32 

451 

421 

476 

546 

427 

212,  509 

116 

398,  422 

545 

98 

480 

'53 

256,  397 

32, 106 

190 

66 

17 
279 

374 
491 

93 

87 

528 

428 

408,  410 

214,  7fi?> 
164 
407 
433 
257 
•53.  355.  358 
390/; 

225 
89 

154 

522 
200 
543 

247 
223 

>35 
644 

74 


xlvi 


TABLE    OF    CASES. 


Section 

Section 

Harris  v.  Saunders 

426 

Haugh  V.  Seabold 

452 

V.  Seals 

•54 

Haven's  Appeal 

451 

V.  Stihvell 

5-6 

Hawes  v.  Humphrey 

76,85 

Harrison  v.  All  Persons 

"5 

V.  Smith 

255 

V.  Clark 

'5-.  '53 

Hawke  v.  Wedderburne 

116 

V.  Every 

60 

Hawkes  v.  Saunders 

395 

V.  Harrison 

218 

Hawkins  v.  Day 

402,  436,  476 

7'.  Henderson 

47.  439 

V.  Glass 

370 

:■.  Mahorner 

176 

7J.  Johnson 

186 

:■.  Meadors 

504 

7'.  Ridenbrout 

418 

7\  Moseley 

280 

7j.  Robinson 

lOI 

7'.  Nixon 

17 

Hawthorne  v.  Beckwith 

506 

r'.  Perea 

545 

Hawley  v.  Botsford 

390 

?■.  Rowley 

193 

V.  James 

509 

7\  Sterry 

•5 

Haxall  V.  Lee 

"5 

r.  Turbeville 

147 

Hayes,  Re 

454 

7'.  Vreeland 

366 

Hayes  v.  Pratt 

28,  31,  174 

Harrison's  Appeal 

.      85 

Haynes  v.  Forshaw 

239 

Hart  v.  Bostwick 

160 

V.  Haynes 

490 

V.  Coltrain 

27 

V.  Meek 

•56 

V.  Hart 

357 

Haynsworthy  v.  Frierson 

203 

V.  Jewett 

424,  428 

Hays  V.  Doane 

227 

V.  Rust 

63,  402 

V.  Hays 

402 

V.  Smith 

128 

V.  Jackson 

250,  494 

V.  Soward 

98 

V.  Matlock 

504 

V.  Ten  Eyck 

230 

Hays's  Estate 

486,  541,  546 

Harter  ?•.  Harter 

85 

Haythorp  v.  Neale 

360 

V.  Taggart 

390 

Hazard  v.  Engs 

544 

Harth  v.  Heddlestone 

346 

Hazelden  v.  Whitesides 

•95 

Hartnett  v.  Wandell 

36,  41,42 

Hazen  v.  Darling 

146 

Hartsfield  v.  Allen 

308 

Head  v.  Bridges 

402 

Hartwell  v.  Chitters 

221 

ZK  Sutton 

206,  213 

7:  Rice 

500 

H  yager's  Executors 

441 

Hartz's  Appeal 

146 

Heard  v.  Drake 

444,  446 

Hartzell  7'.  Commonwealth 

140 

7'.  Northington 

211 

Harvard  College  v.  Amory 

324 

Hearth  7\  Heddlestone 

346 

Harvey,  Goods  of 

84 

Heath  v.  Allin 

355.  357,  402 

Harvey,  Re 

'30 

V.  Belk 

428 

Harvey  v.  Harvey 

482 

V.  Chilton 

292,  403 

V.  Richards 

174.  179 

7:  Wells 

390 

Har^vood  v.  Goodright 

4 

Heatherington  7'.  Lewenb 

urg               479 

Hasbrouck  v.  Hasbrouck 

356 

Iledderly  7'.  Downes 

378 

Haskell  v.  Bowen 

292 

lledrick  t.  Tuckwiller 

33' 

Haskett,  A'c 

135 

Hedenberg  7'.  Hedenberg 

'73'  '79 

Haskins  v.  Miller 

118 

Heermans  v.  Hill 

72 

Hassall  v.  Smithers 

21 1 

Hegaity's  Appeal 

59,85 

Hassinger's  Appeal 

"3 

Ilegerich  7\  Keddie 

283 

Hastings,  Goods  of 

"5 

Heighway  v.  Pendleton 

214 

Hastings  v.  Myers 

456 

Hellen  7-.  Wideman 

288 

7'.  Rider 

73 

Helm  V.  Van  Vleet 

294 

Hatch  7'.  Hatch 

502 

Helme  7>.  Sanders 

170 

7'.  Proctor 

195 

Hemphill  v.  Moody 

487 

Haschett  v.  Berney 

176 

Henderson  v.  Ayers 

439 

Hathaway  7'.  Sherman 

202,  21 1 

V.  Clarke 

120 

Hathaway's  Appeal 

65 

V.  Henderson 

329.  33' 

Hathornthwaite  z/.  Russell 

33 

V.  Ilsley 

411 

Haltatt  V.  Hattatt 

62 

7'.  Simmons 

510,  542 

Hauck  7'.  Slauffer 

509 

Ilt-ndrick  r'.  Gidney 

409 

TABLE    OF    CASES. 


xlvii 


Hendricks  v.  Snodgrass 

128 

7'.  Thornton 

405 

Hendrickson  v.  Hendrickson 

5 '4 

Hendrin  v.  Colgin 

«30 

Hendrix  v.  Hendrix 

510 

Hendry  v.  Cline 

3'o 

Henfrey  v.  Henfrey 

36 

?{engst's  Appeal 

402 

525 

Henry  v.  Estey 

418 

Henry's  Succession 

116 

Henry  ('ounty  v.  Taylor 

387 

Henshaw  <'.  Blood 

233 

V.  Miller 

280 

Hensley  v.  Dennis 

271 

Henson  v.  Ott 

218 

Hepburn  v.  Hepburn 

273 

Hernandez,  Goods  of 

139 

144 

Heron,  Estate  of 

104 

Heron  v.  Hoffner 

403 

Herrick  7'.  Wright 

470 

Herriman  i>.  Janney 

142 

Herring  v.  Whittam 

461 

Herron  v.  Marshall 

360 

Hesson  21.  Hesson 

403 

Hester  7/.  Hester                  407, 

467 

506 

V.  Wesson 

255 

Hewett  V.  Bronson 

421 

Heydock's  Appeal 

174 

Heyer's  Appeal 

532 

Hibbard  v.  Kent 

120 

Hickling  v.  Boyer 

381 

Hickman  :'.  Kamp 

233 

Hicks  V.  Chouteau 

144 

Hieschler,  AV 

451 

Higbee  v.  Bacon 

525 

Higgins  V.  Driggs 

398" 

V.  Higgins 

231 

476 

V.  Rector 

428 

Hight  V.  Wilson 

75 

Hill  V.  Alspaugh 

H5 

V.  Buford 

443 

V.  Cock 

217 

V.  Gomme 

476 

7;.  Henderson 

.89 

190 

V.  Simpson                    349, 

350 

357 

V.  Tucker                            3 

,42 

179 

V.  Walker 

389 

Hillman  v.  Stephens 

522 

Hilyard's  Estate 

479 

liindman  v.  State 

334 

Hindmarsh  v.  Charlton 

77 

nines  V.  Hines 

208 

Hinton  v.  Bland 

128 

7'.  Parker 

236 

Ilirschfield  v.  Cross 

522 

Hirst  7'.  Smith 

410 

Hitchcock  7\  Mosher 

202 

545 

Hobart  v.  Connecticut  Turnpike  Co.  1 7; 


Hobbs  V.  Craige 

522 

Hobson  V.  Ewan 

25,' 92 

llodgdon  V.  White 

389 

Hodge's  Estate 

485 

Hodge  V.  Hodge 

408 

Hodgman,  Re 

545 

Hodgson  V.  Fox 

491. 

508 

v.  Shaw- 

427 

Hoffman  V.  Hoffman 

49' 

V.  Wilding 

213 

Hogan  V.  De  Peyster 

324, 

335 

V.  Grosvenor 

77 

Hoke  V.  Fleming 

400 

V.  Hoke 

316 

Holbert,  Succession  of 

421 

Holbrook  v.  Bentley 

^37 

V.  Head 

2,2, 

Holcomb  7'.  Holcomb 

264, 

308 

7'.  Phelps 

'5 

7'.  Sherwood 

527 

Holcombe  v.  Beach 

289, 

293 

V.  Holcombe 

402 

Holden  v.  Blaney 

82 

V.  Fletcher 

419 

Holladay  v.  Land  Co. 

345. 

346 

Holland  v.  Hughes 

324 

V.  Prior 

519 

Hollenbeck  v.  Pixley 

449 

451 

Hollis  V.  Smith 

291 

HolUster  v.  Attmore 

500 

Holman  7'.  Perry 

160 

V.  St.  John 

369 

Holmes,  In  re 

128 

Holmes  v.  Bridgman 

308 

V.  Holmes 

120, 

496 

7'.  Remsen 

16 

Holt  V.  Murray 

426 

Holyoke  v.  Mutual  Life  Ins 

Co. 

24 

Hone  V.  Lockman 

546 

HonyAvood,  Goods  of 

85 

Hood,  Re 

155. 

247 

Hood  V.  Lord  Harrington 

57,  58, 

160 

Hook  V.  Payne 

538 

Hooker  7'.  Bancroft 

230 

Hooper  71.  Bryant 

418 

7'.  Goodwin 

368 

V.  Gorham 

282 

Hooper  r'.  Moore 

170 

7'.  Olmstead 

174 

V.  Scarborough 

128 

154 

V.  Stewart 

92 

153 

V.  Summersett 

186 

187 

Hooper's  Will 

473 

Hoover  v.  Miller 

236 

Hopkins  ?'.  Morgan 

256 

397 

V.  Towns 

186 

Hopkinson  7'.  I^each 

439 

Hopper  V.  Hopper 

173 

xhiii 


TABLE    OF    CASES. 


Section  | 

.Section 

Horlock.  lie 

469 

Ilulchings  7'.  Bank 

376 

Hosack  V.  Rogers 

157 

llulchins  7'.  State  Bank       175, 

176, 

352 

Hough  r'.  Bailey 

362 

Hutchinson  7\  Lambert 

124 

r .  Harvey 

538, 

545 

V.  Owen 

310 

House  V.  House 

227 

V.  Priddy 

116, 

'53 

Houston,  Goods  of 

139 

V.  Reed 

200 

Houston  z:  Howie 

265 

Hutchinson's  Appeal 

535 

Houts  7:  Shepherd 

337 

Hutton  V.  Williams 

523 

Hover  v.  Agnew 

457 

Hyatt  z).  McBurney 

402 

Hovey  ?-.  Hovey 

457 

7>.  Vanneck 

489 

z'.  lilakemaii 

402 

Hyde  v.  Neate 

470 

:■.  Newton 

375 

Hyland  v.  Baxter 

543 

f.  Page 

280 

v.  Smitli 

540 

Howard  v.  Dougherty 

•35 

L 

f.  Howard 

518 

V.  Leavell 

420 

Idley  7'.  Bowen 

84 

Howcott  V.  Warren 

284 

Ikelheimer  v.  Chapman 

346 

Howe  V.  Lord  Dartmouth 

3-4 

Illinois  Central  R.  7\  Craziij 

26, 

V.  Peabody 

142 

169, 

170 

Howel  V.  Price 

430 

512 

Inches  rt.  Dickinson 

376 

Howell  7>.  Howell 

288 

Inchiquin  v.  French 

62 

V.  Metcalfe 

'35 

Ingle  V.  Jones 

413 

J'.  Reams 

427 

435 

7'.  Partridge 

323 

Howland  7\  Coliin 

376 

7'.  Richards 

58, 

39' 

V.  Green 

473 

Iowa  Co.  V.  Ilolderbaun 

516 

I  loxie  I'.  Hoxie 

474 

Ipswich  Man.  Co.  v.  Story 

208 

Hubbard  f.  Alexander 

468 

Ireland  z'.  Corse 

545 

T'.  Barcas 

98 

Irvin  V.  Ironmonger 

478 

V.  Hubbard 

439 

Irwin's  Appeal 

171 

Hubbell  7'.  P'ogartie 

184 

187 

Isham  z>.  Gibbons 

'72 

Hudson  V.  Breeding 

420 

Israel  v.  Wolf 

89 

-'.  Hudson 

404 

Ivens  V.  Eiwes 

428 

Huff  7:  Thrash 

405 

Ives  V.  Allyn 

57 

7\  Wat  kins 

^83 

370 

V.  A.shley 

358 

515 

Huger  r'.  Dawson 

435 

V.   Salisbury 

20 

Hughes,  AV 

166 

173 

Hughes  7\  Turner 

60 

Huggins  7'.  Tole 

282 

J. 

Hughes'  Estate 

431 

Huglilett  7\  Hughlett 

140 

406 

Jackson  v.  Alsop 

467 

Huldane  -■.  Eckford 

21 

7,'.  Chase 

3'o 

Hulkes.  AV 

538 

7J.  Hill 

39' 

Hullr-.  Hull 

264 

T.  Jackson 

500 

7'.  Xeal 

28 

V.  Paulet 

41 

Humbert  v.  Wurster 

'95 

7'.  Phillips 

463,  464 

Humphrey  7'.  Merritt 

226 

V.  Vaudalfsen 

358 

Humphreys  7\  Keith 

506 

V.  W^ilson 

146 

Hunt,  Goods  of 

^^3 

Jacob  V.  Emmett 

5.38 

Hunt  V.  Hamilton 

140 

Jacob's  A]ipeal 

346 

Hunter  ?'.  Bryson 

37.42 

Jacoljs  7\  \\'oodside 

208 

7'.  Hunter 

403 

Jacobus  V.  Jacobus 

218 

,  3'7 

Hurlburt  v.  Wheeler 

540 

Jacomb  77.  Ilarwood 

404 

Hursey  v.  Coffin 

33 

Jacques  v.  Chambers 

486 

Husband  7'.  Pollard 

304 

James  zj.  Beesly 

509 

Huse  V.  Brown 

433 

James's  Appeal 

256,318 

Hussey  ?'.  ("ofiftn 

'  54 

Jamison  v.  Lillard 

40fi 

Ilutchenbon  v.  Pigg 

146 

Jarvis  v.  Rogers 

370 

TABLE    OF    CASES. 


xli\ 


Jeeter  v.  Durham 
Jefferson  ?■.  Beall 
Jefferson's  Estate 
Jeffersonville  R.  R.  v.  Swayne 
Jelke  V.  Golsmitli 
Jemison  v.  Smith 
Jenkins,  Goods  of 
Jenkins,  Will  of 
Jenkins  v.  French 

V.  Jenkins 

V.  Mitchell 

V.  Smith 
Jenney  v.  Jenney 
Jennings  v.  Copeland 

V.  Davis 

V.  Newman 
Jennison  v.  Hapgood  i6, 

421,  422,  530, 
Jerningham  v.  Herbert 
Jerroms  v.  Jerroms 
Jessup  V.  Spears 
Jewett  V.  Turner 
Jillett  V.  Union  Nat.  Bank 
Job  V.  Job 
Jochumsen  v.  Suffolk  Savings 


V.  Willard 
Johns  V.  Johns 

V.  Lawrence 

V.  Norris 
Johnson  v.  Arnold 

V.  Ames 

7'.  Baker 

V.  Belden 

V.  Brady 

V.  Brown 

V.  Corbett 

V.  Cross 
V.  Gushing 
V.  Fuquay 
V.  Henry 
V.  Hogan 
V.  Holliday 
V.  Jackson 
V.  Lawrence 
V.  Longmire 
V.  Molsbee 
V.  Newton 
V.  Parnell 
V.  Patterson 
V.  Pierce 
V.  Richards 
V.  Slawson 
V.  Von  Kettler 
V.  Warwick 
V.  Wallis 
V.  Waters 


137,  194 


404,  42^ 


141 


Section 
428 
179 
428 
91 
363 
170 

133 
81 

370 
417 
500 
370 
281 
213 
247 

395'  397 
175.  180, 

S3«.  547 

19 

404 

433 

51 

428 

315 
Bank 
91,  160 

93 

195,  201 

545 
358 
217 

205 

421 

SCO 

428 

310 

444,  446, 

45',  542 

461 

222 

. 147,  247 

450 

408  I 

513! 

177, 

545 

506 

416 

322 

510 
214 
288 

527 
428 

433 
194 

173 
390^ 


Section 


Johnson  t.  Wiseman 

227 

V.  Woods 

217 

Johnson's  W'ill 

84 

Johnston,  Goods  of 

172 

Johnston  ?'.  Fort 

504 

V.  Morrow 

422 

V.  Tatum 

116 

V.  Union  Bank 

396 

Johnston's  Estate 

356 

Jones,  Ex  parte 

541 

Jones,  Goods  of 

37 

Jones,  Re 

326, 

535,  54' 

Jones  V.  Beytagh 

124 

t.  Bittenger 

1 12 

V.  Boulware 

428 

V.  Carter 

374 

V.  Clark 

350 

V.  Dixon 

141 

V.  Evans 

439 

V.  Foxall 

538 

V.  Gerock 

174 

V.  Gordon 

141,  142 

V.  Habersham 

74 

V.  Hooper 

334 

V.  Irwin 

520 

V.  Jenkins 

256 

V.  Jones          109, 

144,  195, 

407,  522 

V.  Jenks 

437 

V.  Letcher 

483 

V.  Lewis 

315 

V.  Littlefield 

372 

V.  Logan 

305 

V.  McLeod 

428 

V.  Moore 

39' 

V.  Moseley 

67 

V.  Nicholay 

63 

V.  Richardson 

138 

V.  Ritter 

135,  147 

V.  Simmons 

342 

V.  Stites 

324 

7'.  Thurmond 

305 

V.  Warnock 

515 

V.  Williams 

464,  522 

V.  Walker 

326 

V.  W^ard 

316,  542 

V.  Wightman 

213 

Jones's  Appeal 

402, 

508,  510 

Jordan,  Goods  of 

31 

Jordan  v.  Pollock 

288 

V.  Polk 

135 

V.  Thornton 

488 

Joslin  V.  Caughlin 

346 

Joy  V.  P'esler 

422 

Jubber  v.  Jubber 

465 

Judge  of  Probate  v.  Claggett 

140,  146 

V.  Ellis 

3903 

V.  Heydock 

146 

Judson  V.  Connolly 

297 

TABLE    OF    CASES. 


Judson  z'.  Gibbons 
Juler  z:  Jiiler 
Julian  z\  Reynolds 


Section 

5' 
494 
358 


K. 


Kain  v.  Fisher 

226 

Kaminer  v.  Hope 

•34,  J  35. 

506 

Kane  v.  Paul 

160 

Kansas  Pacific  K.  z'.  Cutlei 

'73 

Karr  :•.  Karr 

247 

Kavanaugh  t.  Thompson 

154 

Keane,  Goods  of 

"5 

Kearney  v.  Turner 

102, 

129 

Kearsley  z:  Oxley 

376 

Keates  v.  Burton 

49 

Keating  v.  Keating 

353 

Kee  z>.  Kee 

3'6 

Keefer  z:  Schwartz 

407 

Keister  z:  Howe 

106 

Keith  z:  Parks 

428, 

438 

z'.  Proctor 

170 

Kellar  z\  Beelor 

330 

Kellbcrg's  Appeal 

'54 

Keller's  Appeal 

308 

Kelley  z:  Riley 

280 

Kellow  z:  Central  Iowa  R. 

283 

Kelsey  v.  Kelley 

220 

V.  Smith 

409 

Kelso  V.  Vance 

36 

Kelly  v.  Davis 

49' 

508 

z'.  Kelly 

408 

v.  Richardson 

461 

z:  West 

153,  160 

53' 

Kemp  z:  Waddingham 

426 

Kendall  ?•.  Hates 

386 

387 

Kennedy  ?■.  Kennedy 

18 

174 

Zf.  Chapin 

296 

Kennedy  z:  Wilson 

284 

Kent  z:  Cloyd 

520 

7'.  Dunham 

479 

481 

v.  Stiles 

247 

Kerchner  z:  McRae 

397 

Kernochan,  iVt- 

479 

Kernochan  ?-.  Elevated  R. 

R.  Co. 

216 

Kenv.  Dougherty 

459 

V.  Hill 

542 

z'.  Kerr 

'53 

V.  Moon 

19,  164 

'73 

7>.  Water 

402 

V.  Wimer 

428 

Kersey  v.  Bailey 

449 

45' 

Kidd's  Estate 

141 

Kidwell  z:  Kidwell 

->3 

216 

Killam  ?■.  C'ostley 

'54 

Killigrew  v.  Killigrew 

33 

Section 


Kilpatrick  v.  Bush 

'79 

Kimball  v.  Sumner             213, 

5'0, 

512/. 

Kimmell  v.  Burns 

430 

Kinard  v.  Riddlehoover 

67 

King  v.  Anderson 

216 

z:  Clarke 

'79 

V.  Foxwell 

21 

V.  Green 

408, 

410 

V.  Jones 

285 

V.  Kinsey 

75 

V.  Lyman 

191 

V.  Morrison 

321 

V.  Shackleford 

403 

V.  Talbert 

413. 

487 

V.  Thom 

258, 

293 

V.  Whiton 

509 

King's  Estate                        160, 

478, 

481 

Kingdom  v.  Nettle 

285 

Kingman  v.  Kingman 

45' 

453 

Kinlay  z:  Gaddy 

389 

Kinmonth  tj.  Brigham 

324 

Kingsbury  v.  Scovill 

507 

Z'.  Wilmarth 

451 

Kingsland  v.  Scudder 

544 

Kinnan  v.  Wight 

525 

Kinney  v.  Keplinger 

40 

Kirby  57.  State 

331 

Kirby's  Appeal 

500 

Kircudbiight  v.  Kircudbright 

498 

Kirkman  z>.  Benham 

329 

77.  Booth 

257 

326 

Kirtlan,  Estate  of 

112 

Kittredge  J'.  Folsom 

160 

Kyle  7'.  Kyle 

525 

Kline  zk  Gathart 

289 

290 

7'.  Moulton 

213 

510 

Kline's  Appeal 

504 

Kling  zi.  Hummer 

402 

Knight  7'.  Cunningham 

390 

7'.  Davis 

381 

z:  Gould 

400 

z'.  Haynie 

402 

z>.  Knight 

482 

490 

V.  Lasseter 

408 

7'.  Loomis                37.  407 

.413 

538 

7'.  Oliver 

500 

7'.  Yarborough 

346 

Knights  7'.  Quarles               2S0 

286 

366 

KnowUon  ?'.  Johnson 

527 

Kno.x  7'.  Bigelow 

292 

Kohler  <'.  Knapp                   200 

,  216 

,547 

Konvalinka  z'.  Schlegel 

457 

Koon  7'.  Munro 

526 

Kooystra  z:  Buyskes 

125 

Kost's  Appeal 

541 

Krell  7'.  Codman 

476 

Krone  z:  C;ooper 

21 

TABLE    OF    CASES. 


S 

action 

.Section 

Kurtz  V.  Saylor 

17 

Lawrence  v.  Lawrence 
V.  Parsons 
V.  Wright 

173 

'35 
195 

L. 

Lawrence's  Appeal 
Lawrence's  \<'\\\ 

515a 
'53 

La  bin  v.  Emigrant  Bank 

92 

Laws  V.  Thompson 

428 

Labouchere  v.  Tupper 

326 

Lawson  v.  Hausborough 

444 

Lacam  v.  Mertins 

427 

V.  Lawson 

292 

Lacey  v.  Davis                     3 

:o,  324 

402 

r.  Stitch 

461 

Lackland  v.  Stevenson 

123 

Lawson 's  Appeal 

500 

Lacoste  v.  Splivalo 

148 

Lawton  i\  Fish 

487 

Lacroix,  Goods  of 

169 

Lay  V.  Lay 

43 

Lacy  V.  Stamper 

3-4 

416 

V.  Mechanics'  Bank 

390 

Ladd  V.  Wiggins 

201 

Laycock  v.  Oleson       289,  292 

293.  403 

Lafayette  Ins.  Co.  v.  Harris 

25 

Leach  v.  Pittsburg 

184 

Lagarde,  Succession  of 

310 

Leake  v.  Beanes 

230 

Lahey  v.  Brady 

371 

V.  Gilchrist 

91,  ^1?> 

Laible  v.  Ferry 

326,  446^ 

V.  Leake 

324 

Laidley  7'.  Kline 

212 

Leavens's  Estate 

504« 

Lamb  I'.  Helm 

135 

Le  Baron    v.     Long    Island 

Bank 

V.  Lamb 

346 

352 

400,  402 

Lambert  v.  Crafts 

418 

Ledbetter  v.  Lofton 

■57 

Lamine  v.  Darrell 

160 

Leddell  v.  Starr 

'57 

Laming  v.  Gee 

519 

Lee  V.  Chase                         277, 

278,  297 

Lancaster,  Goods  of 

3 

I,  60 

V.  Lee 

509 

Landers  v.  Stone 

9'-  95. 

250 

V.  Patrick 

418 

Landis  -■.  Saxton 

537 

V.  Sedgwick 

'03 

Landry  v.  Delas 

388 

Leeds  Banking  Co.,  Re       326, 

345.  3S0 

Lanenville  v.  Anderson 

17 

Leese,  Goods  of 

40 

Langbein,  Re 

171 

Lees  V.  Wetmore 

27,  91 

Langford,  Goods  of 

40 

Lefever  v.  Hasbrouck 

324 

Langford  v.  Mahoney 

409 

Legarde,  Succes.sion  of 

329 

Langham  v.  Baker 

390 

Legate  v.  Moulton 

284 

V.  Sanford 

494 

Lehr  v.  Turball 

'54 

Langley,  Goods  of 

152 

Lehr's  Appeal 

527 

Langley  v.  Harris 

137 

Leib  V.  Wilson 

16. 456 

V.  Hawke 

:si) 

Leigh  V.  Barry 

402 

V.  Lord  Oxford 

343 

Leitch  V.  Wells 

3.39 

Lang^vorthy  i>.  Baker 

116 

Leland  v.  Felton 

208 

Lanier  v.  Irvine 

140, 

433 

V.  Kingsbury 

503-  5<J4 

Lank  v.  Kinder 

40c 

V.  Manning 

170 

Lansdowne  v.  Lansdowne 

374, 

487 

Le  Mason  v.  Ditson 

372 

Lansing  v.  Lansing 

335 

485 

Le  Moyne  v.  Quimby 

212,  515 

Lappin  v.  Mumford 

200 

240 

Lendon  v.  Woodward 

316 

Lark  v.  Linstead 

488 

Lent  V.  Howard 

545 

Larkins  v.  Paxton 

437 

Lentz  V.  Pilert 

"5 

Laroe  v.  Douglass 

532 

Leonard  v.  Haworth 

V^ia 

La  Rue  v.  Gilkyson 

431 

Leonard  v.  Nye 

200 

Lathrop  v.  Smith 

100, 

103 

Leonino  v.  Leonino 

430 

Latta  V.  Miller 

326 

Lepard  v.  Vernon 

400,  437 

Laughlin  v.  Lorenz 

251, 

326 

Le  Prince  v.  Gillemot 

428 

Laughton  <7.  Atkins 

60 

Lerch  v.  Emmett 

422 

Laundy  v.  William- 

478 

Le  Sage  v.  Coussmaker 

368 

Lawrence  v.  Elmendorf 

18, 

174 

Lesher  v.  Wirth 

455 

V.  Embree 

481 

LesUe  v.  Marshall 

474 

V.  Hebbard 

17 

Levan's  Appeal 

104 

V.  Kemp 

227 

Leverett  v.  Dismukes 

1 10 

V.  Kitteridge 

174 

Levering  v.  Levering 

'57 

lii 


TABLE    OF    CASES. 


Lewes,  Trusts,  Re 

Section 
484 

Long  7'.  Morrison 

s 
280, 282 

ection 
366 

Lewin,  Trusts, 

5I' 

V.  Symes 

46 

Lewin  v.  Lewin 

490 

V.  Wortham 

157 

Lewis,  Ke 

542 

Longley  v.  Hall 

545 

Lewis  V.  Lusk 

230 

Longnet  v.  Scarven 

214 

V.  Lyons 

242 

Loper,  Matter  of 

387 

V.  Mason 

504 

Lord  V.  Lord 

478 

V.  Keed 

341 

Loomis  V.  Armstrong, 

545 

V.  Kingo 

223 

Lorimer,  Goods  of 

44 

V.  Rumney 

3^9 

Loring  v.  Bacon 

148 

V.  Watson 

'47 

V.  Cunningham 

200 

218 

L'Fit  V.  L'Batt 

86,  169 

V.  Horticultural   Soc 

ety 

480 

Libby  v.  Christy 

346 

V.  Oakey 

170 

Libley  -'.  Cobb 

414 

V.  Steineman 

527 

Liddell  v.  McVickar    526,  537 

542, 544 

Lothrop  V.  Wightnian 

241 

358 

Lidderdale  v.  Robinson 

428,  525 

Lott  V.  Meacham 

1 56,  488 

Lightcap's  Appeal 

532 

Lougher  v.  Williams 

285 

Lighton,  Goods  of 

40,42 

Lovell  V.  Field 

256,  364 

397 

Lillard  v.  Reynolds 

488 

V.  Minot 

324 

Lilly  V.  Griffin 

544 

Lovering  v.  Minot 

479 

V.  Stahl 

504 

Low  V.  Bartlett 

174 

Lincoln  v.  Wright 

402 

Lowe  T.  Jones 

418 

Lindsay  ?■.  Lindsay 

32 

Lowry  r-.  Commercial  Bank 

352 

Lingle  v.  Cook 

148 

V.  Fulton 

44 

Linsenbigier  v.  (iourley 

288 

V.  Newsom 

506 

Lister  v.  Smith 

71 

Lowson  V.  Copeland 

308 

Litchfield  7'.  Cudworth 

358 

Loy  V.  Kennedy 

75 

V.  Flint 

256,  293 

Lucas  zi.  Brooks 

62 

Litterdale  v.  Robinson 

'45 

V.  Doe 

407 

Little  V.  Berry 

125 

Luce  V.  Manchester 

•73 

228 

V.  Little 

418,  526 

Lucht  7'.  Behrens 

325 

326 

V.  Sinnett                            9 

.  <)3'  420 

Lucy  V.  Levington 

285 

z:  Walton 

245 

Luc  key,  Ke 

422 

Littlefield  v.  Eaton             230, 

3go,  446^!' 

Lucy  z/.  Lucy      212,  213, 

428,  51C, 

512^ 

Livermore  v.  Bemis 

'51 

Ludlam's  Estate 

461 

7'.  Wertman 

322 

Ludlum  V.  Otis 

62 

Liverpool  Bank  z'.  Walker 

379 

Lukton  V.  Jenney 

• 

275 

Livingston  v.  Newkirk 

243 

Lund  V.  Lund               421 

422,  542 

546 

Lloyd  V.  Chambers 

55 

Lungren  v.  Swartzwelder 

63 

V.  Crispe 

353 

Luscomb  7'.  Ballard     195 

395.  397 

398 

7'.  Finlayson 

160 

Lusk  V.  Anderson 

544 

7'.  Mason 

94.  430 

Luster  v.  Middlecoff 

142 

Lloyd's  Estate 

490,  538 

Lutham  z'.  Moore 

362 

I^ane  v.  Casey 

439 

Lyall  V.  Baton 

23 

Lockhart  v.  Public  Administrator     334 

Lyle  V.  Williams 

507 

541 

7'.  White 

433 

Lynch  v.  Baxter 

361 

Lockwood  V.  Gilson 

260 

z'.  Divan 

236 

V.  Stockholm 

'3° 

V.  Bellew 

40 

Ixjeven's  Estate 

236 

V.  Paraguay 

16 

l.oftis  V.  Loftis 

422 

Lynn  v.  Sisk 

370 

Ixjmas  V.  Wright 

475 

Lyon,  Ex  parte 

'35 

l.ommen  v.  Tobiason 

538 

Lyon  V.  Hays 

258 

i-ongford  v.  Eyre 

77 

V.  Home 

79 

1  Xing  V.  Easley 

115,  129 

V.  Lyon 

321 

358 

V.  Hitchcock 

279 

V.  Magagnos 

481 

487 

V.  Iluggiiis 

126 

z:  Marshall 

289 

293 

7'.  King 

219 

V.  Osgood 

146 

V.  Kent 

489 

Lyons,  Ex  parte 

128 

TABLE    OF    CASES. 

liii 

Section 

Section 

Lytle  V.  Beveridge 

358 

Martin  v.  Curd 

430 

Lyttleton  v.  Cross 

437 

7'.  Ellerbe 

410 

V.  Gage 

179 

M. 

V.  Lapham 

477 

V.  Martin 

403,  482 

Mackey  v.  Coxe 

165,  174,  176 

V.  McConnell 

346 

Mackintosh  v.  Barber 

405 

V.  Perkins 

67,  70 

Macnamara  z'.  Jones 

544 

V.  Root 

220,  297 

Macpherson  v.  Macpherson                 402 

V.  Williams 

39' 

Maddox  v.  Apperson 

263 

Martin's  Appeal 

42S 

Madison  v.  Shockley 

1 86,  204 

Martineau  v.  Rogers 

473 

Magee  v.  Vedder 

420 

Marvel  v.  Babbitt 

4oS 

Magner  v.  Ryan 

195 

Mason  v.  Man 

417,431 

Magoffin  V.  Patton 

482 

V.  Nutt 

164 

Magraw  v.  Irwin 

179 

Mason,  Re 

546 

V.  McGlynn 

420,441,  525 

Massey  v.  Cureton 

'35f> 

Mahoney  v.  Holt 

461 

Masten  v.  Blackwell 

378 

V.  Stewart 

430 

Masterman,  Re 

465 

Mahon  v.  Allen 

256 

Masterman  v.  Maberly 

63 

Maidman  v.  All  Persons 

"5 

Mathes  v.  Bennett 

448,  449,  451 

Maitland  v.  Adair 

467 

Mathews  v.  Meek 

410,413 

Malone  v.  Kelley 

335 

Matthews  v.  Brise 

321 

Malony's  Appeal 

543 

V.  Matthews 

397,  457 

Maltass  v.  Maltass 

20 

Mawhorter  v.  Armstrong 

357 

Maltby  v.  Russell 

437 

Maxwell,  Re 

50,  122,  142 

Mandeville  v.  Mandeville 

33,  I  ro,  113, 

Maxwell  v.  Craft 

507 

137 

V.  Maxwell 

473 

Manly,  hi  re 

36 

V.  McClintock 

525 

Mann  v.  Everts 

146,  418 

V.  Wettenhall 

481 

V.  Lawrence 

421,  542 

May  V.  May 

258 

Manning  v.  Manning 

324,  500 

V.  Vann 

418 

Mansfield  v.  Turpin 

173 

V.  Woodward 

378 

Manwell  z/.  Briggs         190, 

279,  281,  290 

Maychell,  Goods  of 

1 06,  113 

Maples  V.  Milton 

226 

Mayo  V.  Bentley 

438 

Maraman  v.  Trunnell 

258, 260 

V.  Clancy 

526 

March  v.  Russell 

491 

McAfee  v.  Phillips 

526,  533 

Marcy  ?'.  Marcy 

70 

McAlpine,  Re 

544 

Margarum  v.  Orange  Co. 

245 

McArthur  v.  Scott 

460 

Markland  v.  Albes 

"5 

McBeth  V.  Hunt 

100,  113 

Marr  v.  Play 

46 

V.  Smith 

410 

Marrion  v.  Titsworth 

18,  174 

McBride  v.  McBride 

63 

Marsden,  Re 

63 

McCabe  v.  Lewis 

153-  415 

Marsden  v.  Kent 

348,  355 

McCaffrey's  Estate 

153 

Marsh  v.  Evans 

490 

McCall,  Estate  of 

538 

V.  Harrington 

406 

McCall  7'.  Peachy 

316,  335 

V.  People 

408 

McCalley  v.  Wilhurn 

398^ 

V.  Richardson 

520 

McCampbell  v.  Gilbert 

146 

Marshall  v.  Broadhurst 

253 

McCandlish  v.  Hopkins 

"5 

V.  Carson 

509 

McCartney  v.  Calhoun 

358 

V.  Hitchcock 

527 

7'.  Osburn 

10 

V.  Halloway 
V.  King 

381 

McCarty  v.  Frazer 

208 
164 

120 

7'.  riail 

V.  Moore 

321 

McCauley  v.  Harvey 

155 

Marston  v.  Paulding 

264 

McChord  v.  Fisher 

143 

Martin  v.  Black 

376 

McClane  v.  Spence 

246 

V.  Boler 

236 

McClead  7'.  Davis 

510 

V.  Bradley 

370 

McClellan's  Appeal 

100,  no. 

7'.  Clapp 

270 

III,  112,  113 

liv 


TABLE    OF    CASES. 


McClellan  v.  Filson 
McCloskey  7:  Gleason 
McCord  I'.  Thompson 
McCormick  -■.  ^V right 
McCorn  f.  McCorn 
McCreary  -■.  Taylor 
.McCurley  t.  McCurley 
McClintock's  Appeal 
McC'lure  z:  Askew 

;■.  Hates 

T.  McClure 

V.  Miller 

J'.  Owens 
McCollum  7'.  McCollum 
McConico  7\  Cannon 
McConnell  7\  McConnell 
McCord  -'.  McKinley 

?'.  Thompson 
McCormack  t'.  Cook 
McCormick  r'.  McCormick 
McCorn  7>.  McCorn 
McCoy  7'.  Green 

7'.  Paine 

z:  Scott 
McCracken  7>.  Graham 
McColloch  V.  Dawes 
McCustian  v.  Kamey 
McCutchen  7'.  Loggins 
McDaniel  7'.  Johns 
McDaniels  v.  McDaniels 
McDeavman  7-.  Maxfield 
McDonald,  £x  parte 
McDonald,  Ke 
McDonald  v.  King 

7\  McDonald 
McDonnell  v.  I'rendergast 
McDonough,  Succession  of 
McDowall  7'.  McDowall 
McEldry  71.  McKenzie 
McElroy  v.  Hatheway 

V.  Story 
McFadgen  v.  Council 
McFarlin  7'.  Stinson 
McFeeley  v.  Scott 
McGar  7-.  Nixon 
McGaughey  v.  Jacoby 
McGehee  v.  Polk 

V.  Slater 
McGhee  v.  Ragan 
McGill  V.  McGill 

7'.  Monette 
McGlaughlin  v.  McGlaughlin 
McGlinsey's  Apjieal 
McGloin  v.  Vanderlip 
McGooch  V.  McGoocli 
McGovney  7<.  State 
McGrath  7-.  Harnes 
McGregor  -'.  McGregor  : 


Section 

Section 

421,  424 

McGuire  v.  Buckley 

116 

321 

McGuinness  v.  Whalen 

410 

179 

McHardy  v.  McHardy 

544 

402 

Mcintosh  7'.  Humbleton 

417 

490 

McKay  v.  McDonald 

'47 

'54 

McKenzie  v.  Anderson 

33'' 

335 

370 

V.  Pendleton 

189 

428 

McKey  v.  Young 

358 

491 

McKim  V.  Harwood 

230, 

522 

■73 

McKnight  v.  Morgan 

297 

443 

McKoy  V.  Guirkin 

488 

279 

McLane  v.  Spence 

108 

430 

McLaren  v.  McMartin 

389 

347 

Mcl-aughlin  7'.  Dorsey 

284 

507 

71.  Nelms 

522 

189 

V.  Newton 

439 

45' 

McLead  v.  Davis 

213 

179 

McLean  v.  Weeks 

220 

390 

McLenahan?'.  McLenahan 

512 

307 

McLendon  v.  Woodward 

316 

490 

McLeod  7^  Drummond 

349. 

350. 

438 

352 

357 

359 

193 

V.  Johnson 

506 

2'3 

McLoon  V.  Spaulding 

530 

528 

McMahon  v.  Allen 

408 

3S9 

V.  Harrison 

104 

107 

3" 

V.  Paris 

393 

29a 

McMeekin  v.  Muson 

148 

307 

V.  Hynes 

190 

387 

McMurrey  v.  Hopper 

390 

238 

McNabb  v.  Pond 

227 

37 

McNair  v.  Dodge 

119 

334,  355 

McNair's  Appeal 

335 

417 

407 

McNairy  v.  Pell 

135 

526 

McNeill  7y.  McNeill 

265 

50 

McNulty  V.  Ihird 

428 

154 

V.  Pruden 

428 

402 

McPike  V.  Wells 

212 

256 

McQueen,  Estate  of 

538 

534 

McRae  v.  David 

141 

255 

V.  McRae 

328 

355 

154 

McWhorter  v.  Benson 

542 

256 

McWillie  v.  Van  Vacter 

236 

92,  160 

Mead  v.  Bjington       341,  346, 

354. 

355. 

441 

358 

543 

146 

V.  Orrery 

488 

174 

Meadows  v.  Meadows 

500 

289 

Mechlenburgh  7-.  Pisseil 

153 

118 

Meech  v.  Weston 

45' 

453 

253 

V.  Vanderveer 

251 

321 

McMeekin  v.  Hynes 

190 

49' 

McMillan  7'.  Rushing 

509 

422 

McReynold's  Estate 

448 

-56 

Meeker  v.  \'ander\  eer 

251 

104,  107 

Meeks  v.  Vassault 

213 

28 

Megit  V.  Johnson 

503 

2  58,  390 

Mellen  v.  Baldwin 

371 

.  y:,^  403 

Menifee  v.  Ball 

247 

TABLE    OK    CASES. 

Iv 

Section 

Section 

Menzies  v.  Pulbrook 

69 

Missouri  Pacific  R.  v.  Jay 

160 

Mercer  v.  Mackin 

84 

Mitchell  V.  Adams 

156 

V.  Newson 

358 

V.  Cox 

15,  166, 

174 

Merchant,  Re 

200 

V.  Kirk 

186 

Meriden  Steam  Co.  v. 

Guy 

428 

V.  Lunt                            115,  189, 

191 

Merket  v.  Smith 

247 

V.  Mitchell 

77, 

500 

Merkle  v.  Bennington 

128 

V.  Mount 

428 

Merriam  v.  Ilemmenw 

ay 

408 

V.  Warner 

285 

Merrill  v.  N.  E.  Life  1 

ns.  Co. 

163, 

V.  Word 

16 

.67 

175 

Mitchelson  v.  Piper 

437 

V.  Rolston 

70 

Mix's  Appeal 

526 

Merritt  v.  Buckman 

479 

Mockbee  v.  Gardner 

361 

V.  Dickey 

345 

Moffat  V.  Van  Millingen 

400 

V.  Merritt 

325 

Moffatt  V.  Longhridge 

358 

V.  Seaman 

292 

Moffett  V.  Elmendorf 

467 

Metcalfe,  Goods  of 

134 

Mole  V.  Mole 

482 

Michel,  Succession  of 

346,  361 

Mollan  V.  Griffith 

490 

Michener  v.  Dale 

219 

Molloy  V.  Elam 

203 

Mickle  7'.  Miles 

223 

Monell  7/.  Monell 

359 

402 

Middletown  v.  Robinson 

288 

Monroe's  Estate 

358 

Midgley  v.  Midgley 

390 

Monroe  v.  Merchant 

91 

V.  Spicer 

494 

Montague  v.  Dent 

227 

Mikell  V.  Mikell 

315 

V.  Smith 

375 

Miles  V.  Boyden 

82, 

483 

Montalvan  v.  Clover 

173 

V.  Dumford 

405 

Montgomery  v.  Armstrong 

257 

V.  Peabody 

542 

V.  Dunning 

236 

V.  Wheeler 

355 

358 

V.  Millikin 

407 

Millard  v.  Harris 

541 

Moody  7K  Moody 

104 

Miller,  Succession  of 

116 

V.  Shaw 

257 

Miller  v.  Alexander 

408 

410 

v.  Vandyke 

407 

V.  Binion 

358 

Moore  7).  Alexander 

135 

V.  Congdon 

478,  481 

485 

V.  Beauchamp 

308 

V.  Donaldson 

409 

V.  Burrows 

218 

V.  Dorsey 

389 

V.  Chapman 

142 

V.  Eastman 

120 

V.  Darrell 

171 

V.  Harrison 

417 

7'.  Dixon 

519 

V.  Henderson 

362 

V.  Dortie 

428 

V.  Janney 

435 

V.  Felkel 

322 

V.  Jones 

428 

V.  Fields 

15 

173 

V.  Keith 

118 

V.  Gordon 

507 

V.  Meetch 

47.  51 

7'.  Hamilton 

329 

V.  Miller 

60 

.453 

71.  Holmes 

230 

540 

V.  Philip 

478 

V.  Lesneur 

508 

7'.  Proctor 

335 

V.  Moore 

27,  104 

44S 

71.  Towles 

441 

V.  Ridgeway 

137 

7'.  Umberhower 

279 

V.  Ryers 

417 

425 

V.  Williamson 

256 

352 

7>.  Smith                     91, 

92, 160 

409 

V.  Wilson 

282 

366 

V.  State 

145 

Miller's  Appeal 

500 

V.  Tandy 

402 

Mills  V.  Carter 

153 

V.  Townshend 

374 

Milner  v.  Leishman 

270 

V.  Willett 

403 

Milton  V.  Hunter 

72> 

Mootrie  v.  Hunt 

135 

Mims  V.  Mims 

544 

Mordecai  7>.  Boylan 

42 

Miner  v.  Austin 

420 

More's  Estate 

302 

Minor  v.  Mead 

234 

More  V.  Bennett 

370 

Minot  V.  Taylor 

265 

Moreland  v.  Lawrence 

119 

Minter  v.  Burnett 

512a 

Morgan,  Goods  of 

60,6 

3.87 

Missouri  Pacific  R.  v. 

Bradley 

23 

Morgan,  Re 

500 

Ivi 


TABLE    OF    CASES. 


Section 

Section 

Morgan  v.  Dodge  47,  13S 

.  I  5.3 

'54 

156 

Murdock  v.  Raicliff 

223 

V.  Hamlet 

390 

Murphee  v.  Singleton 

488 

V.  Locke 

160 

415 

Murphy  v.  Carter 

407 

V.  Morgan 

45' 

7'.  Creighton 

24,93 

:■.  Rotch 

520 

7-.  Menard 

128 

"'.  Thomas 

195 

7'.  Murphy 

127 

Morgan's  Estate 

116 

V.  V'aughan 

430 

Moring  z\  Inlanders 

430 

Murphy's  Estate 

116 

Morrell  v.  Morrell 

«5 

Murray,  Estate  of 

430 

Morrice  v.  Bank  of  England 

437 

Murray  v.  Blatchford 

404 

Morrill  v.  Foster 

236 

7:  E.  L  Co. 

293 

V.  Morrill 

186 

V.  Oliver 

'55 

Morris  V.  Bienvenu 

^2>2, 

Murrell  v.  Cox 

400 

V.  Lowe 

187 

Mu.-iick  V.  Beebe 

526 

V.  Morris 

148, 

297, 

456 

Musselman's  Appeal 

547 

T'.  Swaney 

84 

Musser  7'.  Oliver 

508 

Morrison  z\  Smith 

187 

Musson  71.  May 

427 

Morrow  v.  I'eyton 

542 

Mustin's  Estate 

326 

Morse  v.  Clayton 

408 

Mutual  Benefit  Life  Ins.  Cr 

.  V.  Tis- 

Mortimer  v.  Paull 

'34 

dale 

160 

Morton,  Goods  of 

60 

Myer  v.  Cole 

397 

Morton  v.  Hatch 

178 

Myers,  Jie 

238 

7f.  Preston 

296 

Myers  v.  Daviess 

36,37 

f.  Smith 

327. 

334- 

336 

c\  Woodbury 

467 

Moseley  v.  Rendell 

410 

N. 

V.  Taylor 

255 

Moses  V.  Julian 

160 

Nabb  7'.  Nixon 

236 

V.  Moses        200,  210, 

230, 

330, 

358 

Nancy  v.  Snell 

488 

V.  Wooster 

378 

Napier,  Goods  of 

'53 

Mosher  v.  Voust 

223 

Napier  v.  Wightman 

35^^ 

Mosman  v.  Bander 

292 

Nason  7'.  Smalley 

403 

Moss  V.  Rowland 

173 

Nass  7'.  \'an  Swearingen 

191 

Moule  V.  Garrett 

375 

Nation  v.  Tozer 

401 

Moultrie  V.  Hunt 

'7 

171 

National  Bank  7\  Stanton 

148,  160,409 

Mountcastle  7'.  Mills 

357 

Navigation  Co.  v.  (Jreen 

43 

Mountford  f.  (jibson 

190, 

193 

'95 

Nayler  v.  Blount 

5'9 

Mousseau's  Will 

70 

Naylor  71.  Moffat           160, 

164,  165,  173 

Mowrey  v.  Smith 

500 

V.  Moody 

'73 

Mowry  v.  Adams 

254, 

261 

292 

Neal  7\  Baker 

190 

Moye  V.  Albritton 

435 

7\  Charlton 

128 

V.  Kittrell 

63 

V.  Knox  R.  Co. 

218 

Moyle  V.  Moyle 

328 

V.  Lamar 

263 

Mueller's  Estate 

403 

V.  Patten 

268 

Muirhead  v.  Muirhead 

'57 

Neale  7\  Hagthorp 

239,  240 

Muldoon  V.  Crawford 

428 

Nease7'.  Capehart 

190 

Mulford  V.  Mulford 

244. 

405 

Needham  v.  Gillett 

120 

Mullanphy  v.  County  Court 

"5 

Neeves  ?'.  Burrage 

264 

Mulligan  -,■.  Leonard 

89 

Neff's  Appeal 

308,  310,  316 

Mullins  V.  Varborough 

■430 

Neighbors  v.  Hamlin 

'55 

Mumford  v   Hall 

142 

Neil  ?■.  Cunningham 

390 

Munden  v.  Bailey 

308, 

542, 

543 

Neilley  v.  Neilley 

438 

Mundorff  v.  Wangler 

146 

Nelson  71.  Boynton 

48 

Munroe  v.  Holmes 

128, 

260 

531 

V.  ("arrington 

402 

V.  People 

152 

V.  Cornwell 

386,  387 

Munsey  v.  Webster 

"3- 

115 

7'.  Goree 

496 

Munteith  v.  Rahn 

346,  362 

7'.  Hall 

335 

Muntz  7'.  Brown 

325 

7'.  Jaques 

522 

TABLE    OF    CASES. 


Ivii 


Section 

Section 

Nelson  .'.  Murfee 

49' 

North's  Estate,  Re 

498 

V.  Russell 

428, 

4.39 

Northampton  v.  Smith 

'5' 

V.  Serle 

255 

Northcut  V.  Wilkins 

389 

V.  Smith 

450, 

451 

Northey  v.  Northey 

488 

V.  Stolleinverck 

362 

Norton  v.  Dashwood 

227 

V.  Whitfield 

84 

V.  Frecker 

389 

V.  Wyan 

500 

V.  Palmer 

173.  181 

Nesmith,  Re 

200 

-37 

V.  Sewall 

282 

Nesmith  v.  Dinsmore 

500 

Norwood  V.  Harness 

322 

Nettles  V.  McCown 

'3l>^ 

Nottage,  Re 

461 

Nettleton  v.  Dinehart 

279 

282, 

373 

Nowler  v.  Coit 

164 

Newbold,  Goods  of 

99 

Noyes  v.  Barber 

67,70 

Newcomb  v.  Goss 

435 

438 

V.  Phillips 

387 

V.  Williams 

37, 

154, 

485 

Nugent  V.  Giffard 

239,  339 

Newcombe  v.  Beloe 

"5 

Numan's  Estate 

116 

Newell  V.  Clapp 

361 

Nunn  V.  Owens 

36,  488 

V.  Peaslee 

174 

Nusz  V.  Grove 

99.  104 

New  England  Bank  v.   St 

ockhold- 

Nutting  V.  Goodridge 

282 

ers 

380 

Nyce's  E.state 

335 

New  England  Trust  Co.  ?'. 

Eat 

on 

13 

Nye  V.  Bartlett 

459 

New  England  Mutual  Life  Ins 

Co. 

V.  Lothrop 

431 

V.  Woodsworth 

-5' 

228 

Newhall  v.  Turney 

408 

Newman,  Succession  of 

456 

0. 

Newman  v.  Jenkins 

160 

New  Orleans  Canal  Co.  v. 

Grayson 

144 

Oates  V.  Lilly 

258,  390 

Newsom  v.  Jackson 

280 

O'Brien,  Re 

104 

V.  Newsom 

413 

O'Brien's  Estate 

99 

Newsum  v.  Newsum 

244 

O'Byrne,  Goods  of 

'39 

Newton  v.  Bronson 

268 

Oceanic  Steam  Nav.  Co.  v. 

Suther- 

V.  Cocke 

47 

berry 

353 

V.  Metropolitan  R. 

194 

O'Dee  V.  McCrate 

270 

V.  Newton 

406 

Odell  V.  Odell 

465 

V.  Poole 

331 

O'Dell  V.  Rogers 

70 

V.  Seaman's  Friend  S( 

jciety 

62 

Odiorne's  Appeal 

99 

Nicholas  v.  Jones 

256 

O'Donnell  v.  Hermann 

420 

Nicholls  V.  Judson 

469 

O'Dwyer  v.  Geare 

59 

V.  Nicholls 

^1, 

O'Flynn  v.  Powers 

439« 

Nichols,  Re 

525 

O'Gara  v.  Eisenlohr 

99 

Nicholson  v.  Elton 

370 

Ogilvie  V.  Ogilvie 

525.  538 

Nicolay  v.  Fritzchie 

410 

Oglesby  v.  Gilmore 

289,  292 

Nicoll  V.  Scott 

407 

V.  Howard 

308 

Nield  V.  Smith 

368 

Okeson's  Appeal 

522 

Nimmo  v.  Commonwealth 

542 

Oldham  v.  ColUns 

146,  408 

Nisbett  V.  Murray 

462 

Oliphant,  Goods  of 

37 

Noddings,  Goods  of 

•44 

Oliphant,  /;/  re 

17 

Noel,  Goods  of 

139 

Oliver  v.  Rumford 

367 

Noonan  v.  Bradley 

179 

V.  Vance 

501 

Norbury  v.  Norbury 

y~2, 

Olmsten  v.  Clark 

195 

Norcott  V.  Gordon 

490 

Olson's  Will 

23 

Norfleet  v.  Riddick 

186 

Olwine's  Appeal 

413 

Norman  v.  Baldry 

476 

O'Neal  V.  Tisdale 

141 

V.  Strains 

388 

O'Neall  V.  Abney 

410 

Normand  v.  Grognard  1 5, 

141 

166 

174 

O'Neill  V.  O'Donnell 

544 

Norris  v.  Fristoe 

147 

Opie  V.  Castleman 

310 

V.  Thompson 

461 

Opinion  of  Justices 

13 

North  V.  Walker 

418 

Oram's  Estate 

320 

North  Carolina  University 

.H 

ugh es 409 

Orange  County  v.  Kidder 

442 

Iviii 


TABLE    OF    CASES. 


Section 

Orcutt  V.  Orms 

355.  356 

Ord  V.  Fenw-ick 

292 

Ordinary  v.  Cooley 

142 

V.  Smith 

140 

Ordronaux  :■.  Helie 

174 

O'Reily  v.  Hendricks 

186 

Orr  V.  Kaines 

229,  384,  491 

V.  Newton 

46 

V.  Orr 

33^ 

Osborn  v.  Cook 

332 

Osgood  V.  Breed 

500 

Ossipee  v.  Gafney 

309 

Ostendorf,  Re 

115 

O'Toole  V.  Hurley 

419 

Oughton  V.  Seppings 

'94 

Outlaw  V.  Farmer 

186,  195 

Overfield  v.  Bullitt 

354 

Overman  v.  Grier 

438 

Owen  V.  Potter 

446^^,  540 

Owen  V.  Curzen 

409 

V.  Miller 

24 

V.  Owen 

42 

V.  State 

277 

Owens  V.  Bloomer 

422 

V.  CoUinson 

43i'433 

V.  Cowan 

160,  407 

Owings  V.  Bates 

106 

Oxenham  v.  Clapp 

•87,  436 

Pace  V.  Oppenheim  93,  1 20 

Pacheco,  Estate  of  153 

Pack  7'.  Bathust  222 

Packer  v.  Willson  403 

Paff  V.  Kinney  330,  541 

V.  Fatten  439 

V.  Tucker  269 

Paice  V.  Archbishop  of  Canterbury  421 

Paine  v.  Paulk  44'*^ 

V.  Ulmar  279 

Painter  v.  Henderson  358 

Palmer  v.  Dent  66 

V.  Palmer  209,  213,  239,  510 

V.  Pollock  408 

V.  Stevens  214 

Parcher  v.  Busseli  528 

Parham  v.  Stith  310 

I'arker  v.  Barlow  366,  385 

Parker  v.  Brown  70 

V.  Cowell  431 

V.  Day  544 

V.  Gilliam  352 

V.  Kuchens  503,  504 

V.  I^wis  421 

V.  Nims  502 

V.  Parker  70,  160,  170,  265 


Parker  v.  Young 
Parks  V.  Parks 
V.  Rucker 
Parris  v.  Cobb 
Parry  v.  Ashley 
Parr's  Estate 
Parsons  v.  Lyman 
V.  Mayesden 
V.  Spaulding 
Partee  7>.  Mathews 
Partington  v.  Attorney  General 
Partridge  v.  Court 

V.  Mitchell 
Paschall  v.  Davis 
Pasquier,  Succession  of 
Passmore  v.  Passmore 
Patchenz'.  Wilson  289, 

Patterson  v.  Cobb 
V.  Craig 
V.  High 
V.  Pagan 
V.  Patterson 
V.  Wardsworth 
Patton  V.  Overton 
Patten's  Appeal 
Paul?'.  WilUs 
Pauley  v.  Pauley 
PauU  V.  Simpson 
Payne  v.  Pusey 

V.  Thompson 
Peake  v.  Ledger 
Peale  v.  White 
Pearce  v.  Cooke 

V.  Savage 
Pearson  v.  Darrington         406, 

V.  Pearson 
Pease  v.  AlUs 

V.  Walker 
Peate  7'.  Crane 
Peay  v.  Fleming 
Peck  V.  Bottsford 
7'.  Ingersoll 
V.  Parrot 
Peebles  v.  Overton 

V.  Watts 
Pelham  v.  Newton 
Pendleton  v.  Pendleton       100, 
Pengree  v.  Goodrich 
Penhallow  v.  Penhallow 

V.  Dwight 
Pennington  v.  Healey 
Penny  v.  Brice 

V.  Penny 
People  V.  Curry 
V.  Gibbs 
V.  Keyser 
V.  Lott 
I  V.  Miller 


-^93. 


Section 

427 
500 
236 
250 
21  I 
422 
175,  176 
46,   195 

94 
428 
18,  174 
294 
389 
408 
322 

63 
290,  291 

389 

258 

120,  130 

164,  173 

292,  422 

274 

•73 

«53.  250 

92 

388 

186 

389 

140 

403 

137,  154 

425 
400 

541,  542 
481 
76 
200 
328 
356 
401 
216 
201 

292,  356 

122,  123 
61 

104,  129 
226 

457 
266 
386 
39> 
5«9 
147,  148 

370 
400 
428 
146 


TABLE    OF    CASES. 


lix 


Section 

People  V.  Peck  173 

V.  Phelps  417,  435 

V.  Pleas  388 

Peoples  V.  Peoples  146 

Percival  v.  McVoy  423 

V.  Gale  247 

Perkins  v.  Ladd  186 

V.  Mathes  461 

V.  Perkins  21 1 

V.  Stone  167 

V.  Sturdivant  (Miss.)  226 

Perkins's  Note  478,  537,  538,  App. 

Perkinson  v.  Gilford  372 

Perrin  v.  Granger  287 

V.  Judge  409 

Perrine  v.  Vreeland  323 

Perry,  Goods  of  196 

Perry,  Trusts       512,518,538,542,543, 

544,  545 

Perry  z'.  Campbell  148 

V.  Carmichael  247 

V.  Craig  305 

V.  Cunningham  398'Z 

V.  DeWolf  50 

V.  Field  419 

V.  Gill  407 

V.  Smout  324 

V.  St.  Joseph  R.  91 

V.  Wilson  370 

V.  Wooten  332 

Peter  v.  Beverly  258,  402,  405 

Peter's  Appeal  387 

Peterkin  v.  Inloes  91 

Peters  v.  Leader  193 

V.  Peters  i6o 

V.  Public  Administrator  28,  112,151 

Petersen  v.  Chemical  Bank  173 

Pettengill  7/.  Abbott  422 

Pettingill  w.  Pettingill  137,  155,  546 

Petit  V.  Petit  509 

Phaelon  v.  Houseal  186 

Phelps  V.  McDonald  200 

V.  Phelps  453 

V.  Pond  217 

V.  Robbins  87 

Phillips,  Goods  of  134 

Phillips  V.  Brazeal  148 

V.  Chappel  500 

V.  Everard  376 

V.  Phillips  403 

V.  Rogers  146 

V.  Stewart  137 

Phipps  V.  Steward  518 

Piatt  V.  St.  Clair  408 

Pick  V.  Strong  160 

Pickering  v.  Pendexter  104,  109 

71.  Towers  36 

V.  Weiting  135 


Pico  V.  De  la  Guerra 
Pico's  Estate 
Picot  V.  Biddle 
Picquet  v.  Swan 
Pierce  v.  Irish 
Piester  v.  Piester 
Piggot's  Case 
Pike  V.  Thorp 
Pike's  Estate 
Pike  County  v.  Rowland 
Pillgrem  v.  Pillgrem 
Pinckard  v.  Pinckard 

V.  Woods 
Pinkham  v.  Grant 
Pinkney  v.  Singleton 
Pinkstaff  v.  People 
Pinney  v.  Barnes 

V.  McGregory     24,  25,  93, 

V.  Pinney 
Piper  V.  Piper 
Piper's  Estate 
Piquet,  Appellant 
Piquet,  Re 
Piscoe  V.  Moore 
Pistole  V.  Sweet 
Pistorius's  Appeal 
Pitcher  v.  Armat 
Pitcher  v.  Tovey 
Pitkin  V.  Pitkin 
Pitt  7'.  Pitt 
Pitte  V.  Shipley 
Pitts  V.  Melser 
Place,  Re 

Place  V.  Oldham  28, 

Plaisance's  Estate 
Piatt  V.  Piatt  200, 

Pleasant's  Appeal 
Pleasants  v.  Dunkin 
Plimpton  V.  Fuller 
Plowman  v.  Henderson 
Plume  V.  Beale 
Plumer  v.  Marchant 

V.  Plumer 
Plummer  v.  Brandon 
Polhemus  v.  Middleton 
Pollard  V.  Pollard 

V.  Sears 
Pollexfen  v.  Moore 
Pollock,  Re 
Ponce  V.  Wiley 
Pond  7'.  Makepeace     i68,  173, 
Pool,  Succession  of 
Poole  V.  Munday 
Pope  7'.  Boyd 

V.  Curl 
Porter  v.  Askew 

V.  Hey  dock 

V.  Porter 


Section 
419 
108 
526 
164 

533 
430 

32 
438 

33 
319 
326,  345 
542 
355 
477 
256 
148 

413 

120,  168 

194 

451 

146 

172 

141 

310 

106 

422 

132 

376 

265,  325 

200 

430 

58 

413.  509 

428,  438 

3Z 
210,  544 

335 
118 
512 
114 
85 
427.  439 
227 
172 

544 
490 

389 
44 

200,  525 
387 

176,  177 

274.  346 
332 

288,  390 
205 
502 
174 
500 


Ix 


TABLE    OI"    CASES. 


Porter  V.  Trail 

32.57 

Porter's  Estate 

422 

Portevant  v.  Neylans 

527 

Portis  V.  Cummings 

533 

Post  V.  Caulk 

iiS 

Potter  V.  Titcomb 

19.  230 

7'.  Van  Vranken 

279. 

281,371 

V.  Smith 

408 

Poulson  V.  rrenchtowii 

Bank 

53' 

v.  Johnson 

5'i 

Pound  r.  Pound 

282 

Powdrell  v.  Jones 

427 

Powel  V.  Thompson 

137 

Powell  V.  Demming 

265 

V.  Evans 

328,  384 

7'.  Graham 

367, 

368,  397 

T.  Myers 

438 

V.  Rees 

373.  374 

f.  Stratford 

39 

V.  Stratton 

'73 

Powers  V.  Littlewood 

502 

Powis,  Goods  of 

139 

Pratt,  Jie 

461 

Pratt  V.  Pratt 

506 

V.  Swaine 

'95 

Prescott  z\  Durfee 

-7 

V.  Morse 

43 

Preston  v.  Cutter 

219,  220 

Price  V.  Dewhurst 

»5. 

165,  169 

V,  Morgan 

370 

7'.  Morris 

'73 

7'.  Moulton 

294 

7>.  Nesbit 

340, 

346,  488 

7<.  Strange 

498 

Prichard  v.  Thompson 

464 

Pride  v.  Watson 

456 

Priest  V.  Watkins 

195 

Priestman  v.  Tindal 

427 

Primrose  v.  Bromley 

378 

Prince  7>.  Nicholson 

437 

Pringle  V.  McPherson 

253.  297 

Prior  7'.  Talbot 

146,  247 

I'ritchard  r.  Noi-wood 

207 

Pritchett's  Estate,  AV 

504 

Probate  Court  v.  Kent 

434 

Probate  Judge  v.  Mathes 

3-9 

Proctor  V.  Terrill 

3'7 

7'.  Wanmaker 

"6.  153 

Propst  V.  Meadows 

420 

Proud  V.  Turner 

498 

Pryor  v.  Davis 

544.  545 

I'ublic  Administrator  7- 

Burdell         -544 

7'.  Hughes 

loS 

7'.  Peters 

I  16 

7'.  Ward 

270 

V.  Watts 

116 

Pucketi  7/.  James 

S07 

Pugh  V.  Russell 

428 

Pugsley  V.  Aikin 
Pulliam  V.  Byrd 
7/.  Winston 
Pulling  V.  Durfee 
Pultei  ey  v.  Warren 
Punchard,  Goods  of 
Purdy  V.  lloyt 
Purple  7>.  Withed 
Pursel  7'.  I'ursel 
Putnam  v.  CoUamore 
Pyke  V.  Searcy 


Q- 

Quain's  Appeal 
(,)ueensbury  7'.  Shebbeare 
Quin  V.  Moore 
Quincy  7/.  (^uincy 

7'.  Rogers 
t)uinn  V.  Moss 


Section 

376,  395 

346 

356 

455 

374 

37 

527 

176,  179 

542 
265,  473 


376 
295 
283 

474 
483 


R. 

Radcliffe,  AV 
Radford  r-.  Radford 
Radnall,  Goods  of 
Radovich's  Estate 
Railroad  Co.  v.  McWherter 
Railroad  v.  Harris 
Raines  z'  Raines 
Rainsford  7'.  Taynton 
Rambo  ?'.  Wyatt 
Ramsey  7'.  Blalock 
Rand  7,'.  Butler 

7^.  Hubbard 
Randall  v.  Rich 

7'.  Shrader 
Randle  7'.  Carter 
Raphael  7'.  Boehm 
Rajjpelyea  7'.  Russell 
Rat  cliff  e  z'.  Barnes 
Rathbone's  Estate 
Rattoon  7-.  Overacker 
Rawlins  v.  Powel 
Rawlinson  v.  Shaw 

V.  Stone 
Rawstone  v.  Parr 
Ray  V.  Doughty  200, 

Raymond  7'.  Eitch 
Rayner  tj.  Pearsall 
Raynor  f.  Green 
Rea  V.  Englesing 
Read  ?'.  Truelove 
Reade  v.  Livingston 
Reading  v.  Weir 
Reagan  v.  Long 


437 
109 
116 

154,  160 
173 
358 
'33 

106,  128 

361 
465 
362 
376 

98 
'54 
384 
398 

69 
525 
'95 
469 

5' 
362 

378 

317.409 

285 

321 

46 
107 

4(. 
220 
4  28 
190 


TABLE    OF    CASES. 


Ixi 


Section 


Reaves  v.  Garrett 

542 

Richardson  v.  Merrill 

452 

Reavis,  Ex  parte 

456 

V.  N.  Y.  Central  R. 

283 

Rebhan  v.  Mueller 

56 

Richmond  v.  Delay 

504 

Record  v.  Howard 

160 

V.  White 

439 

Rector  v.  Conway 

389 

Rick  V.  Gilson 

404 

Reech  v.  Kennegal 

255 

Ricketts  v.  Lewis 

353 

Reed,  Goods  of 

139 

V.  Weaver 

285 

Reed  v.  Crocker 

322 

Riddell  v.  Sutton 

369 

V.  Gilbert 

236 

Riddle  v.  Hill 

187 

V.  Howe 

no 

V.  Mandeville 

359 

Reed's  Estate 

506 

Rider  v.  Wager 

470 

Reeve's  Trusts,  Re 

494 

Ridgley  v.  People 

488 

Reeves  v.  Steele 

146 

Ridout  V.  Bristow 

255 

Refeld  v.  Belette 

488 

Rigby,  Ex pa7tc 

400 

Reformed  Presb.  Church  v. 

Nelson 

70 

Riggs  V.  Cragg 

478 

Rehard  v.  Long 

146 

Riley  v.  Albany  Savings  Bank 

252 

Reid,  Re 

20 

V.  Kepler 

5'5 

Reid  V.  Butt 

288 

V.  Norman 

526 

V.  Porter 

453 

Rinehart  v.  Rinehart             112 

153 

403 

Reist  V.  Heilbrenner 

281 

Ringgold  V.  Stone 

538 

Reitzell  v.  Miller 

386,  387 

Ripley  v.  Sampson      305,  318, 

380 

430 

Remnant  v.  Brembridge 

376 

Risdon,  Goods  of 

1 06 

Renfro  v.  White 

148 

Ritchie  v.  Rees 

231 

232 

Reno  V.  Tyson 

146 

Rittenhouse  v.  Ammerman 

293 

Rex  V.  Netherseal 

58 

V.  Levering 

541 

V.  Simpson 

33 

Ritter's  Appeal 

389 

442 

V.  St.  Dunstan 

227 

Roach  V.  J  elks 

545 

V.  Stone 

194 

Ro  Bards  v.  Lamb 

135 

414 

Rexroad  v.  Wells 

265 

Robb's  Appeal 

216 

Reyburn  v.  Ruggles 

412 

Robbins,  Matter  of 

230 

Reynold  v.  Torrance 

164 

Robbins  v.  Wolcott 

346 

542 

V.  Hamilton 

401 

Roberts  v.  Calvin 

142 

V.  Kortwright 

165 

169 

V.  Nelson 

286 

Reynolds  v.  McMullen 

19 

V.  Reynolds 

77 

V.  Reynolds 

77, 

542 

"'.  Roberts 

547 

V.  Zink 

•54 

Roberts's  Estate 

544 

Rhea  v.  Meyers 

432 

Roberts's  Will 

171 

Rhett  V.  Mason 

518 

522 

Robertson  v.  McGloch 

50 

Rhoad's  Appeal 

526 

V.  Picknell 

'9 

Rhodes  v.  Rhodes 

85 

Robie's  Estate 

109 

V.  Vinson 

85 

Robinett's  Appeal                325, 

331 

538 

Rice,  Appellant 

378 

Robinson  v.  Adams 

73 

Rice  V.  Boston  Aid  Society 

468 

T .  Bell 

187 

V.  Gordon 

352 

71.  Chairman 

508 

V.  Rice 

295 

V.  Crandall 

173 

Rich,  Re 

525 

V.  Davidson 

367 

Richards  v.  Davies 

474 

V.  Epping 

200 

V.  Dutch 

174 

?'.  Hodge 

l^ob 

V.  Mills 

ic6 

V.  Hodgkin 

208 

V.  Pierce 

58 

V.  Lane 

362 

V.  Richards 

461 

V.  Lowater 

511 

V.  Sweetland 

154 

509 

V.  Pett 

545 

Richardson,  Goods  of 

133 

7'.  Robinson 

328 

Richardson,  Re 

506 

V.  Steele 

523 

Richardson  v.  Horton 

426 

512 

V.  Tickell 

485 

V.  Jenkins 

427 

Robinson's  Executor's  Case 

427 

V.  Knight 

ZZZ 

Rocco  7'.  Cicalla 

450 

V.  McLemore 

323 

.  509 

1  Rocke  V.  Hart 

438 

538 

Ixii 


TABLE    OF    CASES. 


Section 

S 

ection 

Rockham  v.  Wittkowski 

173 

Roys  V.  Roys 

271 

Rockwell  V.  Saunders 

199 

Rozelle  v.  Harmon 

189 

V.  Young 

187,  190 

Rubottom  V.  Morrow 

315.  407 

413 

Roderigas   r.   East    River 

Savings 

Rucker  v.  Waddington 

442 

Bank 

92,  96 

Ruddy,  Goods  of 

^ZZ 

Rodman  v.  Rodman 

226 

Ruff  V.  Smith 

412 

Rodwell  z\  I'hillips 

226 

Ruggles  V.   Sherman 

209 

Roe  t:  Harrison 

353 

Ruoff's  Appeal 

63 

Rogers,  Ex  parte 

450 

Rusling  -'.  Rusling 

396 

469 

Rogers  v.  Danvers 

426 

Russell  ?'.  Erwin 

118 

409 

V.  Fort 

394 

V.  Hartt 

57 

V.  Gooch 

289 

V.  Hoar 

124 

V.  Hand 

541 

V.  Hooker 

24 

179 

V.  Hoberlein 

160 

7'.  Hubbard 

418 

V.  King 

13,  520 

V.  Madden 

t6 

V.  Paterson 

217 

V.  McDougall 

148 

V.  Rogers 

434 

Russell's  Goods 

36 

V.  Ross 

473 

Ryan  v.  Ryan 

99 

V.  State 

430 

V.  Texas  Pacific  R. 

56 

V.  Traphagen 

543 

Ryder,  Goods  of 

41 

V.  Tullos 

Z^la,  324 

Ryno  V.  Ryno 

91 

V.  Winton 

70 

V.  Zook 

362 

Rogerson,  Goods  of 

99 

S. 

Rolair  v.  Darby 

428 

Rollins  V.  Rice 

4 '3'  483 

Saam  v.  Saam 

190 

Whipper 

'53 

Sabin  v.  Gilman 

•73 

Rolhvagen  <■.  Rollwagen 

74 

Sacia  v.  Berthoud 

352 

Rowig's  Appeal 

525 

Sadler  v.  Hobbs 

335 

Rooney,  Ke 

422 

Saeger  v.  Wilson 

508 

Roosevelt  v.  Ellithrope 

507 

Saffran  v.  Kennedy 

203, 

408 

Root,  Re 

"3 

Saffold  V.  Banks 

258, 

412 

Root  V.  Geiger 

190,  193 

Sain  V.  Bailey 

203 

Rose  V.  Bowler 

395 

Salmon  v.  Clagett 

352 

V.  O'Brien 

506 

V.  Hays 

126 

V.  Quick 

63 

Salter  v.  Cain 

409 

V.  Winn 

142 

vSalyer  v.  State 

140 

Rosenthal  v.  McGee 

420 

Sample  v.  Liscomb 

263 

V.  Remick 

27,  168 

Sampson  v.  Sampson 

418 

Ross,  Goods  of 

139 

V.  Shaw 

379 

Ross  V.  Barclay 

413 

Samuel  v.  Thomas 

398, 

422 

V.  Cowden 

310 

Sanborn's  Estate 

485 

V.  Ewer 

63 

Sanborn  v.  Goodhue 

273 

V.  Harden 

252,  397 

Sanders  v.  Barrett 

15 

V.  Mims 

144 

V.  Blain 

404 

V.  Newman 

190 

7'.  Edwards 

•47 

Ross's  Trusts 

498 

V.  Jones 

'73 

Rosser,  Goods  of 

46 

V.  Loy 

528 

Rossiter  v.  Cossit 

430 

Sanderson,  Re 

237 

Rough  V.  Womer 

272 

Sanderson  v.  Sanderson 

308. 

439- 

Roumfort  v.  McAlarney 

441 

520, 

542 

Rowan  v.  Kirkpatrick 

408 

Sandford  v.  Wicks 

390 

Rowley  v.  Pair 

244 

Sanford  7'.  Gilman 

146 

V.  Adams 

375 

V.  McCreedy 

293 

Rownen,  Re 

392 

V.  Thorp 

527,  537, 

542 

Roxburgh  v.  Lambert 

"5 

San  Roman  v.  Watson 

128 

Roy  V.  Segrist 

70 

Sarah  71.  Gardner 

275 

V.  VUas 

345 

Sargent,  Re 

109, 

"3 

TABLE    OF    CASES. 


Ixiii 


Section 

Section 

Sargent  v.  Fox 

112 

Scruby  v.  Fordham 

85 

V.  Kimball 

429 

Scruggs  V.  Driver 

402 

V.  Sargent 

324. 

479 

Scurficld  v.  Howes 

402 

Sarkie's  Appeal 

32 

Scurrah  v.  Scurrah 

23' 

Sarle  v.  Court  of  Probate 

•38. 

342 

Search  v.  Search 

'3 

Sasscerz/.  Walker 

200 

Searle  v.  Court  of  Probate 

'35 

Saunders  v.  Gatlin 

409 

V.  Lane 

426,  436 

V.  Saunders 

403 

Sears  v.  Currier 

588,  296 

Saunderson  v.  Stearns 

241 

V.  Dillingham 

47.  157 

Savage  v.  Gould 

537 

V.  Mack 

505 

Sawyer  -'.  Baldwin 

473 

V.  Wilson 

104 

V.  Concord 

279 

Seawell  v.  Buckley 

526 

V.  Mercer 

436 

Secar  v.  Atkinson 

395 

7'.  Sawyer 

448, 

449 

Segars  v.  Segars 

369 

Saxton  V.  Chamberlain 

538 

Seip  V.  Drach 

397,  398 

Sayers's  Appeal 

214 

Selleck  v.  Rusco 

194 

Sayre  v.  Sayre 

527 

Sellero's  Appeal 

528 

Scarborough  v.  Watkins 

308 

Seller's  Estate 

236 

Scarce  v.  Page 

116 

Sellers  v.  Licht 

190 

Scarth  v.  Bishop  of  London 

25 

V.  Sellers 

265,  522 

Schaffner  v.  Grutzmacher 

456 

Selman  v.  Milliken 

506 

Schaub  V.  Grififin 

508 

Selover  v.  Coe 

419.  445 

Schenck  v.  Schenck 

522, 

532 

Seman  v.  Whitehead 

544 

Schenkl  v.  Dana 

200 

Semmes  v.  Magruder 

389 

Schlecht's  Estate 

'55 

Senat  v.  Findley 

418 

Schmittler  v.  Simon 

398rt 

Senoir  v.  Ackerman 

137,  211 

Schober  v.  Probate  Judge 

64 

Seaver  v.  Weston 

Scholefield  v.  Eichelberger 

326 

Sever  v.  Russell 

526,  530 

Scholey  v.  Walton 

389 

401 

Sevier  v.  Succession  of  Gordon         531 

Schoolfield  v.  Rudd 

205 

Sewell  V.  Slingluff 

83,  539,  542 

Schouler,  Petitioner 

463 

Seymour  v.  Seymour 

520,  530 

Schreiber  v.  Sharpless 

283, 

370 

Shackelford  v.  Runyan 

408,  409 

Schultz  V.  Dambmann 

17 

Shaeffer  v.  Shaeffer 

421 

V.  Pulver 

>75 

308 

Shafer  v.  Grimes 

282,  373 

Schwartz's  Estate 

213 

Shaffer's  Appeal 

526 

Schwertfegen,  Goods  of 

"5 

135 

Shakespeare   v.    Fidelity 

Insurance 

Scituate  Court  v.  Angell 

478 

Co. 

24,  205 

Scofield  V.  Churchill 

146 

V.  Markham 

432 

Scott  V.  Atchison 

310 

Shallcross  v.  Wright 

431 

V.  Becher 

33 

Shaltz  V.  Dambmann 

17 

V.  Crews                128,  152 

,  409 

538 

Shaker's  Appeal 

143 

V.  Fink 

82 

Shannon  v.  Shannon 

20 

V.  Fox 

43 

128 

Sharland  v.  Mildon 

186 

V.  Governor 

230 

Sharp  V.  Dye 

118 

V.  Hancock 

389 

V.  Farmer 

120 

V.  Kennedy 

523 

V.  Lush 

519 

V.  Key 

395 

Sharpe  v.  Rockwood 

324 

V.  McNeal 

160 

V.  Scarborough 

221 

V.  Monell 

543 

Sharpe's  Appeal 

'53 

V.  Searles 

352 

362 

Shaw  V.  Berry 

400 

V.  Taylor 

350 

V.  Cable 

3'o 

V.  Tyler 

339 

349 

V.  Hallihan 

190 

V.  West 

247 

V.  Spencer 

349.  350 

Scott's  Case 

247 

Shawhan  v.  Loffer 

408 

Scoville  V.  Post 

184 

Shee  V.  French 

221 

Scranton  v.  Demere 

120 

Sheehan  v.  Kennelly 

403 

V.  Farmers'  Bank 

362 

Sheet's  Estate 

485 

Scroggs  V.  Tutt 

420 

Sheetz  n.  Kirtley 

526 

1ai\ 


TABLE    OF    CASES. 


Section 


Sheen  v.  Rickie 
Sheffield  r.  Lord  Coventry 
Shegoggf.  Perkins 
Sheibley  v.  HUl 
Sheldon  v.  Warner 

f.  Bhss 

f.  Rice  27,  164,  173,  179, 

330 
V.  Sheldon 
V  Woodbridge 
V.  Wright 
Shelley's  Case 
Shelton  f.  Homer 

I'.  Rhodes 
7:  Mouls 
■.  Houghton 
■'.  Chase 


Shephard 
Shepherd 
Sheridan 
Sherman 

V.  Dodge 

V.  Jerome 

V.  Page  18 

V.  Sherman 

V.  Western  R. 

V.  Willett 
Sherwood  r-.  Hill 

z'.  Smith 
Shewen  v.  X'andenhorst 
Shewmake  ?•.  Johnson 
Shields  v.  Odell 

V.  Shields 
Shillaber  z'.  Wymaii 
Shindel's  Appeal 
Shipbrook  z'.  Hinchenbrook 
Shipley,  Ex  parte 
Shipman  z\  Butterfield 
Shirley  v.  Healds 
Shirreff  v.  Hastings 
Shirt  V.  Westly 
Shoenberger  ?'.  Saving; 
Shofner  7'.  Shofner 
Shomo's  Appeal 
Shreve  v.  Joyce 
Shriver  v.  State 
Shropshire  v.  Withers 
Shuler  v.  Millsaps 
Shumway  z\  Cooper 

T'.  Holbrook 
Shup  7'.  Calvert 
Shurtleff  -'.  Francis 
Shuttleworth,  Goods  of 
Siboni  z'.  Kirkman 
Sibthorp,  Goods  of 
Sidle  V.  Anderson 
Sieckman  ?'.  Allen 
Sigourney  v.  Sibley 
Slier  z>.  Gray 
Sill  7'.  McK night 
Simmonds  -'.  liolland 
Simmons  ?■.  Hoyd 


227 

487 

15,  181 

362 

64,  430 

^-33^  453 

>35« 
469 

358 
536 
421 
405 
160, 168 
335.  33^ 


J'3' 


183, 
204, 

346, 


194. 


84 

530 
509 
488 
234 
448 
391 
354 
146 
500 

389 
265 
208 
137 
195 
526 
402 
322 
118 

195 

427 

481,  490 

Institution    194 

226 

102 

389,  401 

504^' 

"3 

280,  372 

98 

56,  59.  94 

212,  515 

368 

85 

253.  367 

61,  62 

-55 
247,  258 

13.  "4 
367 

33 

476 

543 


Simmons  v.  Simmons 
Simms  v.  Richardson 
Simonton  v.  McLane 
Simpson  v.  Chapman 

V.  Cook 

V.  Gutteridge 
Simpson's  Appeal 
Sims  V.  Boynton 

z).  Lively 

V.  Stillwell 
Singleton  z'.  Moore 

V.  Singleton 
Sitzman  v.  Pacquette 
Sivley  v.  Summers 
Skiffington  v.  Budd 
Skelheimer  v.  Chapman 
Skinner  v.  Wynne 
Skrine  v.  Simmons 
Slack  V.  Emery 

V.  Slack 
Slade  V.  Slade 

V.  Washburn 
Slagle  V.  Entrekin 
Slaney  v.  Watney 
Slanning  v.  Style 
Slater  v.  May 
Slaughter  v.  Froman 
Slauter  v.  Chenowith 
Slaymaker  v.  Farmers'  Bank 
Sleake  v.  Newman 
Sleech  v.  Thorington 
Sleighman  z>.  Marshall 
Sleighter  r .  Harrington 
Sloan  v.  Johnson 

Sloan 
Slocomb  z>.  Slocomb 
Slocum  V.  Sanford 
Small  z'.  Commonwealth 


Smartt  z\  Watterhouse 
Smethurst  v.  Tomlin 
Smiley  v.  Allen 
Smilie  v.  Siler 
Smith,  Goods  of 
Smith  z'.  Attersoll 

V.  Ayer 

V.  Black 

T.  Blackwell 

v.  Bland 

7'.  Carrere 

V.  ("hapman 

-■.  Chapman 

V.  Collamer 

"'.  Davis 

zi.  Day 

z>.  Downes 

7'.  Downey 

V.  Dutton 


355. 


91.  95.  134 


33^ 


Section 

295 
430 
186 

325 

37.  160 
400 

508 
91,  291 
146 
256 
508 
226 
157 

131 

41C 
291 
498 
357 
430 
453 
538 
135 
409 

44 
'37 
133 
410 

173 
409 

376 

480,  490 

200 

255 
409 

•73 

20 

200 

140,  142, 

146 


352 


349- 


362 

33 
244 
522 

43 
62 

350-  352 
522 
428 
216 
408 
366 
App. 
274 

533 
476 

433 

43'' 
526 


TAB  LI':  ()!•   casp:s. 


Ixv 


Smith  V.  Dunwoody 
7'.  Ellington 

V.  Everett  400, 

7:  Yield 

7'.  First  Presby.  Church 
7'.  Gillam 
7'.  Guild 
7'.  liaskins 
7'.  Hurd 
7>.  Hutchinson 
V.  Lambert 
V.  Mayo 

V.  McLaughUn  422, 

V.  Moore 
V.  Morgan 

V.  Munroe  109, 

V.  Pattie 
V.  Phillips 
V.  Pistole 
V.  Pollard 
V.  Porter 
V.  Preston 

7J.  Sherman    115,  279,  280,282, 
V.  Smith  278,  428, 

V.  Stockbridge 
V.  Thompson 
V.  Tiffany 
V.  Union  Bank 
V.  Van  Kuren 
V.  Wells 
V.  Whiting 
V.  Wilmington  Coal  Co 


V.  Young 
Smithers  v.  Hooper 
Smith's  Appeal 
Smyley  v.  Reese 
Smyth  V.  Burns 

V.  Taylor 
Snead  v.  Coleman 
Sneesby  7'.  Thorne 
Snelling's  Case 
Snider  v.  Croy 
Snodgrass  v.  Cabiness 

V.  Snodgrass 
Snow  V.  Snow 
Soldini  v.  Hyams 
Solomon  ?'.  Wixon 
Somerset,  Goods  of 
Somerville  v.  Somerville 
Son  V.  Miner 
Sorin  v.  Olinger 
Sotheran  71.  Dening 
Soutter,  Re 
Southall  V.  Jones 

-/.  Taylor 
Southwestern  R.  7'.  Paulk 
Soverhill  7>.  Suydam 


253. 
261 
104. 
412 


258, 


199' 


528, 
308, 


242 
428 
404 
481 
217 

430 
164 
260 
308 
509 
527 
431 
431 
402 

427 

'13 
249 

137 
135 
346 
186 

367 
^429 
500 
160 
3^3 
•73 
15 

y-7 
514 
401 

254, 
367 
106 

538 

544 
335 
347 
398 
400 

7 
291 

239 
526 
288 
141 
46 
135 

400 

543 
82 

533 

63 

356 

173 


Sowers  7'.  Cyrenias 
Soye  V.  McCallister 
Sparhawk  7'.  Allen 

V.  Buell 
Sparks  v.  White 
Spaulding  7'.  Cook 
Speelman  7>.  Culbertson 
Speidel's  Appeal 
Spencer  v.  Cahoon 

7^.  Rutledge 
Sperry,  Estate  of 
Spinning  v.  Spinning 
Spode  V.  Smith 
Spooner  v.  Hilbish 
Sponsler's  Appeal 
Spraddling  7'.  Pippin 
Springer's  Appeal 
Springfield  v.  Hurt 
Springs  v.  Ii-win 
Springsteen  v.  Samson 
Spruil  V.  Spruil 
Squib  V.  Wyn 
Squier  v.  Mayer 

V.  Squier 
St.  Jurgo  71.  Dunscomb 
St.  Vrain's  Estate 
Stacy  v.  Thrasher 
Stafford  v.  Buckley 
Stag  7'.  Punter 
Stahlschmidt  v.  Lett 
-Stainton,  Goods  of 
Stair  7'.  York  Nat.  Bank 
Stairley  7'.  Babe 
Stallsworth  7>.  Stallsworth 
Stallworth  7'.  Farnham 
Stamper  v.  Garnett 
Stanbrough  v.  Evans 
Standifer  7'.  Hubbard 
Stanford  7'.  Stanford 
Stanley  7>.  Bernes 

7'.  Stanley 

7'.  Whitney 
Stanwood  7'.  Owen 
Staple's  Appeal 
Staples  7'.  Staples 
Stapleton  7'.  Truelock 
Stark  V.  Hunton 

7'.  Parker 
Starr  v.  Brewer 


State 


'.  Adams 
Baskin 
Eerning 
Castleberry 
Crensbauer 
Crassley 
Donegan 
Farmer 
Fields 


.Section 
464 
340 
216 
402 

^n 
189 

362 

453 

142 

409 

221, 428 

457 
476 
220 
468 
167 
208,  48  r 

513 
122 

422 
48S 

'3° 

227 

545 
127 
500 
178,  180 
200 
421 

389.  439 

1 10 

408,  409,  410 

?)3 

241,  247 

520 

533 
361 
418 
420 
17,  '7' 
495 
44 
326 

44 

358 

42 

316,  390 

57 
515 
48 1 

137 
305 
150 
'43 
468,478,  481 

543 
141 
148 


Ix\'i 

TABLE    01 

Section  | 

State  -'.  French  Co. 

146 

7\  Gray 

532 

V.  Ilallett 

23 

7'.  Hogan 

307 

V.  Hymai) 

406 

7'.  Johnson              152, 

3-9.428, 

438 

V.  King 

415 

7'.  McAleer 

508 

7'.  Mitchell 

•50 

7'.   Murray 

409 

7'-  Parrish 

522 

7'.  Piatt 

545 

7'.  Porter 

416 

V.  Price 

141, 

142 

7'.  Probate  Court 

514 

V.  Purdy 

140 

7'.  Keinhardt 

104 

7'.  Rogers 

36,  41   1 

v.  Stroop 

148 

V.  Watson 

37 

V.  Wilson 

526 

State  Bank  7-.  Williams 

533 

Staunton  v.  Parker 

48 

Stayner,  AV 

526 

St  earn  v.  Mills 

230 

236 

Stearns  -■.  Brown 

525 

538 

r.  Biirnham 

.64 

173 

r.  Fiske  • 

104 

<-■.  Stearns 

509 

526 

V.  Wright 

160 

Stebbins  7>.  Lathro])  46,  54 

I  12,  122 

>i53 

7'.  Palmer 

115 

v.  Smith 

138 

Stedman  7'.  P^iedler 

325 

Steel  V.  Steel 

214 

Steele  7'.  Atkinson 

409 

V.  Morrison 

523 

7'.  I'rice 

84,851 

v.  Steele 

257 

Steen  r.  Steen 

409 

Steger  v.  Frizzell 

200 

Stephens  v.  Harris 

431 

v.  Hotham 

376 

Stephens,  Re 

56 

Stephens  c\  Milnor 

335 

Taylor 

145 

Stephens'  Appeal 

544 

Stephenson,  Goods  of 

98 

Stephenson  v.  Stephenson 

104, 

526 

Sterling-Maxwell  v.  Cartwright 

169 

Stern's  Appeal 

325 

Sterrett  -'.  Barker 

256 

Sterrett's  Appeal 

525 

Stetson  V.  Bass 

530 

Stevens,  Re 

538 

Stevens  7\  Bagwell 

98 

7'.  Gage 

3'5 

7'.  Gaylord              1  15, 

163,  168, 

20S 

CASES. 


32, 


Section 

409,  410 

545 

524 
132 
106 
200 
400 

381 

76 

290,  292 

326^7 

295.  355.  356,  522 

323.  402 


175: 


Stevens  v.  Goodell 

7'.  Melcher 

V.  Stevens 
Stevenson  v.  Phillips 
Stewart,  Goods  of 
Stewart,  In  re 
Stewart  v.  Chadwick 

V.  Conner 

V.  Denton 

V.  Harriman 

V.  Richey 

V.  Robinson 

V.  Stewart 
Stickney  7.'.  Sewell 
Stiles's  Goods 
Stillman  v.  Voung 
Stinson  v.  Stinson 
Stockton  7'.  Wilson 
Slokely's  Estate 
Stoker  z\  Kendall 
Stokes  V.  Porter 

V.  Stickney 
Stone  V.  Gerrish 

V.  Huxford 

T.  Stillwell 

7'.  vStrong 

V.  Union  Savings  Bank 
Stong  V.  Wilkson 
Storer  v.  Blake 

7'.  Prestage 
Storms  V.  Quackenbush 
Stose  V.  People 
Stoudenmeier  v.  Williamson 
Stow's  Estate 
Stratton  v.  Linton 
Strawn  ?■.  Strawn 
Stretch  ?■.  McCampbell 
Strever  v.  Feltman 
Stromo  V.  Bissel 
Stronach  v.  Stronach 
Strong's  Estate 
Strong  V.  Perkins 

V.  Strong 

7'.  Wilkinson 
Stronghill  v.  Anstey 
Strother  v.  Hull 
Stubblefield  v.  McRaven 
Studebacker  M.  Co.  z-.  Montgomery    258 


50 
247 
216 
194 
180 

153 
184 
370 
368 

65 

537 
512^ 
402 
146 
200 
478 
403 
408 
290 
318 
T02 
448,  449 

335 
403 

390 
360 
160 

58 
526 

538 

347 

407 

160,  408 


259. 


Studholme  v.  Hodgson 
Studley  v.  Willis 
Stukes  7'.  Collins 
Sturtevant  7'.  Tallman 
Stuyvesant  7'.  Hall 
Styles  V.  (Juy 
Suarez  7'.  Mayor 
Suckley,  Matter  of 
Sugden  v.  Crossland 

Lord  St.  Leonard.- 


473 

39.  398 

356 

526,  530 

400 


335 


402 

24 

502 

537 
84,  85 


TABLE    OF    CASES. 


Ixvii 


Sweezey  v.  Willis 

214 

Swisse  V.  Lowther 

468 

Sullivan  v.  Fosdick 

24,  407 

V.  Holker 

410 

V.  Horner 

421 

V.  Lattimer 

244 

V.  Sullivan 

76 

V.  Winthrop 

481 

Summers  v.  Reynolds 

317 

Sumner  v.  Crane 

89 

V.  Williams 

361,397 

V.  Powell 

378 

Sumrall  v.  Sumrall 

526 

Sutherland,  Goods  of 

139 

Sutherland  v.  Harrison 

430,  512 

Sutter  V.  Ling 

218 

Sutton  V.  Sadler 

73 

Swan  V.  Swan 

100 

Swearingen  v.  Pendleton 

177 

Sweezey  ?'.  Willis 

103,  214,  501 

Sweigart  v.  Berk 

200 

Swenarton  v.  Hancock 

11> 

Swenson  v.  Walker 

420 

Swift  V.  Miles 

435 

Swilley  v.  Lyon 

239 

Swinburn  v.  Ainslee 

227 

Swindell  v.  Bulkeley 

366 

Syme  v.  Badger 

439 

V.  Broughton 

407 

Tabor  v.  Tabor 
Taff  V.  Hosmer 
Taft  V.  Stevens 
Taggard  v.  Piper 
Talbert,  Succussion  of 
Talbot  V.  Radnor 
Taliaferro  v.  Rob 
Talmage  v.  Chapel 
Tanner  v.  Mills 

V.  Skinner 
Tapley  v.  Kent 
Tappan  v.  Tappan 
Tarbell  v.  Jewett 
Tarbox  v.  Fisher 
Tarn  v.  Commercial  Bank 
Tarver  v.  Torrance 
Tasker  v.  Shepherd 
Tate  V.  Norton 
Tatten  v.  Tallman 
Tattnall  v.  Hankey 
Taylor,  Goods  of 
Taylor  v.  Allen 

r.  Barron 

V.  Brooks 

V.  Clarke 


141, 


214 

73 
214,  215 

478 
112 
489 
396 

173,  179 
149 

525 
63 

527 
208 

454 
194 

314 

367 

420 

81 

60 

66 

32 

17Q 
12S 

479 


213. 


132. 


Section 

Taylor  ■".  D'Egville 

63 

V.  Delancey 

104 

v.  Ilaygarth 

494,  503 

V.  Hosick 

160 

V.  Moore 

189, 

'93,  '95 

V.  Mygatt 

256 

V.  Perry 

441 

<'.  Pettus 

16,  211 

V.  Phillips 

120 

V.  Taylor 

456,  462, 

49',  508 

V.  Shore 

124 

V.  Tibbatts 

50 

V.  Wright 

544 

Taynton  v.  Han  nay 

^Z^ 

Teague  v.  Corbitt 

390 

z>.  Dendy 

410 

Tebbs  V.  Carpenter 

308,  384 

Telford  v.  Barry 

321 

Tell  Furniture  Co.  ?'. 

Stiles 

345 

Temples  v.  Cain 

27,  9' 

Teneick  v.  Flagg 

218 

Ten  F2yck  v.  Vanderpool 

256 

Terhune  v.  Bray 

385 

Terrell  v.  McCown 

268 

Terry  v.  Ferguson 

214 

Teschemacher  v.  The 

impson 

154 

Thacher  v.  Dunham 

544 

Thayer  v.  Clark 

420 

V.  HolHs 

389 

7'.  Homer 

1>2>^  47, 

154,  156 

Thellusson  v.  Woodford 

465,  474 

Thorn  V.  Thom 

545 

Thomas,  Petition  of 

217 

Thomas  v.  Adams 

"9 

V.  Knighton 

153 

7'.  Moore 

256 

V.  Smith 

204 

V.  Stanley 

40S 

V.  White 

359 

V.  Wood 

43 

Thompson  v.  Bondurant 

118 

V.  Brown 

325,  390 

V.  Buckner 

409 

V.  Davitte 

77 

V.  Dixon 

50 

7'.  Graham 

403 

V.  Holt 

13 

V.  Hucket 

i'5 

152,  '53 

7'.  Johnson 

63 

V.  Knight 

161 

V.  Maugh 

258,  259 

V.  Meek 

127 

V.  Schenck 

509 

7'.  Stanhope 

295 

•  7'.  Tracy 

135, 

150, 151 

7'.  Towner 

222 

V.  White 

205,  385 

V.  Wilson 

173 

Iwni 


TABLE    OF    CASES. 


Thompson  x:  Winnebago  Cc 

T'.  Voungblood 
Tliomj)son"s  Estate 
Thomson  f.  Thomson 
Thorn  :■.  Tyler 
Thorncraft  i'.  Lashmar 
Thorndike  r .  Boston 
Thome  t\  Walkins 
Thornton,  Goods  of 
Thornton  v.  Burch 

f.  Glover 

v.  Mehring 

-'.  Moore 

7'.  Smiley 

r-.  Winston 
Thor])e  7'.  Jackson 
Thumb  f.  Ciresham 
TiuHston  7'.  I  )oane 
Tichborne  7'.  Tichborne 
Ticknor  ■:•.  Harris 
Tierman  -■.  Hinns 
Tilden,  AV 
Tilley  v.  Bridges 

7\  Trussler 
Tillman  7\  Walkup 
Tilsen  t\  Haine 
Tilton  7'.  Am.  Bible  Society 
Tipping?'.  Tipping 
Titterington  7'.  Hooker 
Tobey  ?'.  Miller 
Todd  V.  Moore 

-'.  Wright 
Todhunter  v.  Stewart 
Tolcher,  Goods  of 
Tolputt  7'.  W^ells 
Tnnikies  7\  Reynolds 
Tompkins  7 .  Tompkins 
Tomlinson  z'.  Gill 
Tompkins  v.  Tompkins 

7'.  Weeks 
Tonnele  v.  Hall 
Toomy,  CJoods  of 
Torrance  ?'.  McDougald 
Torre  7'.  Castle 
Torrence  7-.  navidson 
Towle  V.  Swasey 
Towne  v.  Ammidown 
Townesend's  Appeal 
Townsend  v.  Gordon 

V.  Ingersoll 

V.  Moore 

V.  Radcliffe 

V.  Tallant 

V.  Townsend 
Townsend's  Succession 
Townshend  t.  Windham 
Tracy  v.  Card 

V.  Suydam 


Section 

Section 

O.                200 

Trattle  v.  King 

267 

4«7 

Traver  v.  Schell 

467 

y.  107,  1-4 

Trawick  7>.  Trawick 

526 

230 

Treadwell  v.  Cordis 

405,  473 

271 

Treat  -'.  Fortune 

439 

63 

Trecothick  7\  Austin   164 

173.175.176, 

21 

205 

16 

Trevelyan  7'.  Trevelyan 

85 

50 

Treves  v.  Townshend 

482 

226 

Triggs  V.  Daniel 

413.  543 

506 

Trimble  7\  James 

537 

223 

7'.  Marshall 

389 

13,  114 

Trinmier  7'.  Jackson 

75 

290 

Triplett  71.  Wells 

"3 

44.  46.  50 

Trotter  v.  Trotter 

17,  324 

.57S 

V.  White 

173 

91 

Troup  7'.  Rice 

538 

200 

Trow  7'.  Shannon 

50 

134 

Trueman  v.  Tilden 

543 

390 

Trull  V.  Trull 

352.  363 

453 

Trust  V.  Harned 

428 

526 

Tuck  7'.  Boone 

119 

515 

Tucker  v.  Candy 

174 

104 

•  V.  Green 

409 

170 

V.  Harris 

118 

506 

V.  Tucker 

324,  525,  542 

479 

v.  W^haley 

195.  397 

225 

7'.  Whitehead 

67 

428,  438 

V.  W'illiams 

186 

190 

Tuggle  V.  Gilbert 

308 

358 

Tug^vell  7J.  Heyman 

422 

'34 

Tullock  V.  Dunn 

389,  401 

94 

Tunstall  v.  Pollard 

173 

66 

Turner  v.  Cameron's  Co. 

374 

437 

V.  Child 

186 

329 

V.  Cox 

417 

465 

V.  Hardey 

400 

255 

7-.  Linam 

173 

24,  32.S,  402 

7'.  Turner 

200,  453 

417 

7'.  W^ardle 

427 

87 

7'.  Wilkins 

155,405,406 

37 

Tuttle  7'.  Robinson     209, 

227,  316,  318, 

112,  118 

422,  430 

62 

7'.  Turner 

122 

335 

Twaddell's  Appeal 

545 

490,  512 

Tweedale  7'.  'I'weedale 

468 

406 

Twimble  ?-.  Dziedzyiki 

174 

482 

Twitty  7'.  Houser 

315 

118 

V.  Lovelace 

512 

391 

Tyler  v.  Bell 

15 

170 

Tyndall,  Goods  of 

113.  115 

496 

Tyrrell  7-.  Morris 

341.  347 

247 

70,94 

116 

U. 

222 

408 

Udny  -'.  Udny 

21,  23 

387 

Uldrick  7\  .Simpson 

46 

TABLK    OI~    CASES. 


Ixix 


Underwood  v.  Millegaii 

V.  Wing 
Union  Bank  t/.  McDonough 

V.  Poulson 
Union    Mutual     Life    Ins.     C 
Lewis 

V.  Stevens 
United  States  v.  Cutts 

V.  Daniel 

V.  Duncan 

V.  Eggleston  208, 

V.  Fisher 

V.  Fo.x 

V.  McRae 

V.  Ricketts 

7/.  Walker 
Upchurch  v.  Nosworthy 
Upson  V.  Badeau 
Upton  V.  Lord  Ferrers 
Urquhart  v.  King 
Utley  V.  Rawlins 

V.  Tit  comb 
Utterson  v.  Mair 


Vaden  v.  Hance 

Vail  V.  Anderson 
Vail  V.  Givan 
Valcourt  v.  Sessions 
Valentine  v.  Belden 

V.  Jackson 
Van  Bokkelen  v.  Cook 
Vance  v.  Fisher 

V.  Upson 
Van  Dermoor,  Re 
Vandever  v.  Freeman 
Van  Duzer,  Matter  of 
Vane  v.  Rigdon 
Van  Giesen  v.  Bridgford 
Vanhook  v.  Barnett 
Van  Home  v.  Fonda 
Vanmeter  v.  Jones 
Vanpelt  v.  Veghte 
Van  Rensselaer  v.  Platner 
Van  Schaack  7 .  Leonard 
Van  Steenwyck  r'.  Washburn 
Van  Straubenzee  v.  Monck 
Van  Vechten  7\  Keator 
Van  W'yck,  Matter  of 
Vanzant  v.  Davies 
Vardeman  v.  Ross 
Vaughan  v.  Northup 
Vaughen  v.  Haldeman 
Vaughn  v.  Barret 
Veach  v.  Rice 
Vedder  v.  Sa.xton 


Section 
256 

417 

o.  V. 
116,  173 
202,  211 
205 
205 
428 
428 
428 

459 
169 

43« 

408,  409 

190 

315 

225 

494 

308 

468 

33 


423> 


Velho  V.  Leite 
Venable  v.  Mitchell 
Venables  v.  East  India  Co 
Vermilya  v.  Beatty 
Vernam  v.  Spencer 
Verner,  Estate  of 
Verplanck,  Re 
Verret  v.  Belanger 
Vick  V.  Vicksburg 
Vickers  v.  Bell 
Vincent  v.  Piatt 

V.  Sharp 
Voelckner  v.  Hudson 
Vogel,  Succession  of 
Vogel  V.  Arbogast 

V.  Vogel 
Von  Desen,  Goods  of 
Von  Ruseck,  Goods  of 
Von  Schmidt  v.  Bourn 
Voorhees  v.  Stoothoff 

V.  Voorhees 
Vreeland  v.  Vreeland 
Vroom  V.  Van  Horn 
Vulliamy  v.  Noble 


W. 


"5- 


Section 

42 
250 

15 
•73 

63 
53« 

>3 
146 

122 
46 

213 
203 
456 
96 
236 

y- 
I 16,  117 
169 
414 
317 
84 
356 
175 
379 


241 


500 

197 

Wade  V.  Bridges 

134 

»55 

V.  Graham 

146 

147 

V.  Lobdell 

525 

323 

Wadsworth  v.  Allcott 

216,  226 

291 

V.  Chick 

219,  264 

>75 

Wain  V.  Warlters 

255 

509 

Wainford  v.  Barker 

521 

152 

Wakeman  v.  Hazleton 

321 

211 

Walbridge  v.  Day 

509 

419 

Walcott  V.  Hall 

491 

428 

Waldron  r'.  W^aldron 

5'2 

349 

Walker  v.  Bradbury 

489 

6,  56 

V.  Byers 

419,  445 

141 

V.  Cheever 

438,  520 

46 

V.  Craig 

362 

^~1>1^  520 

V.  Drew 

120 

402 

V.  Hall 

230,  522 

376 

V.  Hardwicke 

512 

489 

7'.  Hill 

444 

457 

V.  May 

'95 

60 

V.  Patterson 

255 

512 

v.  Symonds 

324,  402 

156 

V.  Torrance 

154 

500 

V.  Walker 

236 

407,413 

V.  Witter 

426 

•73' 179 

V.  Woolaston 

•34 

227 

Wallace  v.  Walker 

15',  153 

24,  164 

Waller  v.  Ray 

53' 

160 

V.  Waller 

74 

456 

1  Wallich,  Goods  of 

42 

Ixx 


TABLE    OF    CASES. 


.St 

ction 

WaUis  :■.  Wallis 

132 

Wall's  Api^eal 

421 

543 

Wallv  :■.  Wally 

450 

451 

Waller  r.  Miller 

3«5 

;■.  Kaddiffe 

389 

Walters  ?■.  Nettleton 

279 

Walton  7'.  Hall 

168, 186 

422 

Walton  r .  Walton 

408,  498 

Walworth  -■.  Abel 

120 

Wamsley  :■.  Wamsley 

298 

Wapple's  Appeal 

'3 

Ward,  AV 

lib 

Ward  I'.  Hevill 

186 

V.  Jones 

422 

V.  Kitchen 

335 

V.  State 

148 

V.  Turner 

219, 

362 

V.  Thompson 

98 

V.  Ward 

247 

Ware,  Ex  parte 

427 

Warfield  v.  Brand 

407, 413. 

415 

Waring  v.  Lewis 

338 

Warren  v.  Poff 

389 

Washburn  v.  Hale 

431 

Washington  v.  Blunt 

47 

157 

Waterhouse  f.  Bourke 

-IZ 

Waterman  v.  Dockray 

409 

Waters  v.  Nettleton 

370 

V.  Ogden 

437 

V.  Stickney      56,  152 

153'  '57 

160 

Watkins  v.  Adams 

25 

128 

V.  Brent 

87 

V.  Maule 

362 

V.  Romine 

422 

542 

V.  Stewart 

332 

V.  State 

247 

Watson,  Re 

193 

Watson  V.  Blaine 

285 

V.  Collins 

93 

z>.  Glover 

91 

7'.  McClanahan 

542 

V.  Toone 

358 

V.  Watson 

204,  428 

525 

V.  Whitten 

146 

Watt  V.  Watt 

101 

496 

V.  White 

430 

Wattles  V.  Hyde 

146 

Watt's  Estate 

510 

Watts  V.  Crooke 

501 

Watts 

526 

Way  V.  Priest 

481 

Weaver  v.  Chace 

98 

V.  Penn 

133 

V.  Roth 

506 

v.  Thornton 

247 

Weaver's  P^state 

432 

Webb.  Matter  of 

15 

Webbr.  Adkins 

194 

Webb  V.  Bellinger 

7'.  Dietrich 

7'.  Kirby 

V.  Needham 
Webb's  Estate 
W' eble  V.  Fuller 
Webster  z/.  Hale 

7'.  Hammond 

V.  Spencer 

V.  Tibbits     . 

r.  Wiggin 
Weddall  v.  Nixon 
Wedderburn  7'.  Wedderburn 
Weed  V.  Lermond        233,  536, 
Weeks  v.  Gibbs 

V.  Jewett 

V.  Love 

V.  Sego 

V.  Sowles 
Weir  V.  Mosher 

V.  Tate 
Welch's  Estate 
W^elch's  Succession 
Welch  V.  Adams 
Welchman  v.  Sturgis 
W^eldy's  Appeal 
Wellborn  v.  Rogers 
Welles's  Estate 
Welles  V.  Cowles 
Wells  V.  Betts 

7'.  Brook 

V.  Child 

V.  Miller 

T.  Wells 
Welsh,  hi  7-e 
Welsh  V.  Brown 

V.  Welsh 
Wendell  v.  Wendell 
Wenham,  Ke 
Wentworth  v.  Cock 
Wernse  v.  Hall 
W' est  V.  Bolton 

7'.  Shuttewoilh 

V.  Waddill 

71.  Wilby 
Westerlo  v.  DeWitt 
Westley  v.  Clarke 
Wet  drill  V.  Wright 
Wetmore  7-'.  Parker 
Wetzler  v.  Mtch 
Wever  v.  Marvin 
Weyer  v.  Second  Nat.  Bank 

V.  Watt 
Weyland  v.  Weyland 
Whale  V.  Booth 
Whaley  v.  Whaley 
Wheatley  7'.  Badger 

7'.  l""ellowes 


Section 

317 

7>Z^  137 

133 

100,  104 
422 
491 
481 

428,  438 

324 

288 

489 

60 

537 

537,  53S 

190,  246 

120 

409,  412 

118 

487 

400 

3«o 

120 


322, 


195 
542 
526 

174 
200,  202,  218 

375 
99 

137 

195.  199 

24 

85 

479 
220,  297 

545 
389 
367 
178 
500 
463 

■55 
1 12 
219 
402 

no,  124 

35 

43 

522 

:o2,  341 
529 
499 
339 
457 
37,  485 
460 


TABLE    OF    CASES. 


Ixxi 


Section 

Section 

Wheatley  v.  Hathaway 

420 

Williams  TV.  Flippin 

146 

7'.  St.  Joseph  R. 

120 

Williams's  Appeal 

'53 

7'.  Wheeler 

362,  400 

Williams,  AV 

57 

Wheelwright,  Goods  of 

50 

Williams  v.  Breedon 

280,  284 

Wheelwright  v.  Wheel wri 

ght 

545 

V.  Burrell 

366,  367 

Whicker  v.  Hume 

169 

V.  Conrad 

419 

Whit  V.  Ray 

94,  120 

7'.  Gushing 

46 

Whitaker  v.  Whitaker  98, 

101 

,  1 30,  409 

7'.  Eaton 

430 

V.  Wright 

'54 

z'.  Ely 

34(i 

Whitcomb  ?'.  Cook 

282 

V.  Haddock 

218 

White  V.  Massachusetts  Institute      248 

V.  Heales 

376 

White,  Succession  of 

361 

V.  Holmes 

506 

White  V.  Brown 

152 

V.  Hopkins 

430 

V.  Ditson 

146 

V.  Jakes 

"5 

V.  Donnell 

478 

V.  Kiernan 

192 

V.  Green 

490 

V.  Maitland 

317,  402 

V.  Mann 

•     184 

V.  Marshall 

358 

V.  White 

488 

7J.  Mattucks 

268 

Whitehead  v.  Taylor 

194,  195 

V.  Nixon 

382,  402 

Whiteside  7'.  Barber 

514 

V.  Penn.  R. 

173 

V.  Whiteside 

522 

V.  Petticrew 

530.  533 

Whitford  v.  Panama  R. 

283 

V.  Powell 

482 

Whiting  V.  Whiting 

405 

V.  Price 

428 

Whitley  v.  Alexander 

320,  358 

V.  Purdy 

439 

V.  Stevenson 

450 

V.  Saunders 

150 

Whitmore  v.  Hamilton 

469 

v.  Skinker 

3'o 

V.  San  Francisco  Savings  Union 

V.  Storrs 

164 

420,  430 

V.  Wilkins 

104 

Whitney  v.  Peddicord 

308,  315 

V.  Williams           174,  295, 

316,317, 

V.  Phoenix 

402 

329.  439>  45' 

,  464,  465 

Whittaker  v.  Whittaker 

377 

Williamson,  Succession  of 

98 

Whitworth  v.  Oliver 

'53 

Williamson  v.  Furbush 

116,  119, 

Wharton  7'.  Moragne 

340,  346 

215,430 

Whytez'.  Rose 

.65 

V.  Morton 

362 

Wickersham's  Appeal 

'3 

V.  Walker 

36' 

Wickwire  v.  Chapman 

105,  109 

V.  Williamson 

452,  479 

Widger,  Goods  of 

1 12 

Willing  z/.  Perot 

133,  172 

Widgery  v.  Tepper 

99 

Willis  V.  Farley 

419 

Wiggin  V.  Plumer 

160 

V.  Jones 

98 

V.  Swett         194,  195, 

408,  478,  526 

V.  Sharpe 

347 

Wilbraham  v.  Ludlow 

21 

V.  Smith 

21  3 

Wiles  V.  Gresham 

387 

V.  WilUs 

543 

Wiley  V.  Brainerd 

154 

Willoughby  v.  McCluer 

233.  236 

Wiley's  Appeal 

223 

Wills  V.  Dunn 

540 

Wilkerson  v.  Wootten 

400 

Wilmerding  v.  McKesson 

402 

Wilkins  7'.  Ellett              24 

91. 

164,  167, 

Wilmington  v.  Sutten 

456 

173,  176 

Wilmot,  Goods  of 

40,  42 

V.  Fry 

375 

Wilmot  V.  Woodhouse 

470 

V.  Harris 

33^  '57 

Wilson,  Re 

542 

Wilkinson  v.  Henderson 

379 

Wilson  V.  Arrick 

408 

V.  Hunter 

412 

V.  Beddard 

74 

V.  Leland 

59 

V.  Breeding 

496 

V.  Perrin 

120 

7'.  Curtis 

41 

Willamette  Falls  Co.  7'.  Gordon          s8 

7'.  Dibble 

119 

Willard  v.  Hammond    1 5, 

164 

177,281 

7'  Doster 

352.  362 

V.  Van  Leenwen 

430 

V.  Fielding 

221 

Willets,  Re 

545 

7'.  Frazier 

'57 

Willey  7'.  Thompson 

439 

V.  Fridenburg 

326 

Ixxii 


TABLE    OF    CASES, 


Section 


Wilson  V.  Hoes 

152,  153 

V.  Hudson 

184 

?'.  Kirby 

428 

?■.  Lady  Dunsany 

15.426 

V.  Lineburger 

308,  404 

7'.  Mason 

401 

V.  Moore 

357 

V.  Paul 

437 

V.  Shearer 

423 

V.  Staats 

323 

?'.  Tucker 

366 

7:  Whitefield 

'37 

I'.  Wilson               247. 

250,  438,  494 

Wind  7'.  Jekyl 

4 

Windeatt  7:  Sharland 

I  12 

Windsor  v.  Bell 

43 

Winegar  v.  Newland 

417 

Wing  7'.  Augrave 

2 

Wingate  7'.  I'ool           200, 

322,  441,  542 

V.  Wooten 

•53.  155 

Winn  V.  Slaughter 

•93 

Winslow  7'.  Merchants'  Ins.  Co.         227 

Winsor  7'.  I'ratt 

74 

Winter  v.  Hite 

258 

V.  Winter 

173 

Winthrop  v.  Jarvis 

255 

Winton's  Appeal 

13 

Wirt  V.  Pintard 

160 

Wison  V.  Fielding 

221 

Wiswell  7'.  Wiswell 

238 

Withy  V.  Mangles 

103 

Witman's  Appeal 

522,  526 

Witsel  7 .  l^ierce 

118 

Wolff  V.  Schaeffer 

142,  148 

Wollaston  t.  Hakewill 

376 

7'.  Wollaston 

519 

Womack  7'.  Boyd 

455 

Wood.  A',' 

247 

Wood  7'.  I'lown 

401.  402 

V.  Chetwood 

32 

V.  Ellis 

433 

V.  Gaynon 

227 

V.  Mathews 

58 

7'.  Matthews 

'5 

V.  My  rick 

322 

V.  Nelson 

241 

7'.  l^enayre 

478.  481 

7'.  Seaver 

467 

V.  Tunnicliff 

387,  396 

V.  Vandenburgh 

490 

V.  Williams 

147.  mS 

V.  W^ood 

'37 

Woodley  v.  Holley 

3'7 

Wood's  Appeal 

349.  352 

Wood's  Estate 

345-42  1 

Woodbury  t.  W'K-dbury 

44S 

\N'ooden  f.  C!o\vlc-s 

4.8 

Woodfin  -'.  .VIcNealy 

146,  207 

Section 


Woodfolk  V.  Beatty 

120 

Woodgate  v.  FielA 

5'9 

Woodin  V.  Bagley 

288, 

387 

Woodman  v.  Woodman 

496 

Woodruff  V.  Cook 

265 

?■.  Shultz 

172 

7'.  Woodruff 

525 

Woodruffe  v.  Cox 

106 

Woods,  Goods  of 

35 

Woods  V.  Elliott 

316 

7'.  North 

355. 

361 

V.  Ridley       251,  257, 

258,  259, 

542 

V.  Sullivan 

324. 

327 

Woodward  '■.  Goulstone 

84 

Woodyard  7'.  Polsley 

389 

Woodridge  v.  Bishop 

195 

Woolfolk  V.  Beatty 

120 

Woolfork  V.  Sullivan 

190 

Woolley  V.  Clark          160, 

190,  194 

195 

Wootton  7'.  Redd 

474 

W^organg  v.  Clipp 

146 

Warman,  Goods  of 

98 

Worth  7'.  McAden 

43 

402 

Worthington  7'.  Gittings 

15' 

Worthley  7'.  Hammond 

428 

Wray  v.  Field 

468 

Wren  v.  Gayden 

247 

W light  7'.  Gilbert 

174 

V.  Lowe 

520 

v.  McNatt 

154 

V.  Minshall 

218 

Wright  7'.  Mongle 

88 

7'.  Phillips 

16 

»74 

7>.  Schmidt 

144 

V.  Tat  ham 

73 

V.  Wright 

212 

V.  Wollbaum 

160 

V.  Ware 

28 

V.  Williams 

301 

7'.  Wright               104, 

247.  439 

,451 

Wyatt  7'.  Williams 

283 

Wyck.  Matter  of 

156 

Wyckhoff,  Goods  of 

"5 

Wyman  t.  Halstead 

24 

,  228 

7'.  Symmes 

76 

V.  Wyman 

218 

Wyman's  Appeal 

387 

Wyse  V.  Smith 

430 

\'arborough  7>.  Leggett  386,  387 

Yardley  7\  Arnold  421 

Yates  7\  (lark  154 

;•.   Maddan  487 

N'eldell  t.  Shinholster  244 

Verger  ?'.  Jones  352 


TAHLK    OF    CASES. 


Ixxiii 


Yetter's  Estate 
Yingling  v.  Hesson  • 
York  2'.  York 
Young  '•.  Alexander 

V.  Holloway 

V.  Kennedy 

7:  Kimball 

V.  O'Neal 


Section 

504a 

Young's  Appeal 

390 

456 

239 

Z. 

153 

175 

Zimmerman  v.  Anders 

408,   457 

V.  Kinkle 

176,   408 

V.  Zimmerman 

Section 
402 


459 

364 

62 


THE    LAW 


EXECUTORS  AND  ADMINISTRATORS. 


PART  I. 

INTRODUCTORY  CHAPTER. 

§  I .  Estates  of  Deceased  Persons  ;  how  Settled  in  Modern  Prac- 
tice ;  Theory  of  Judicial  Supervision.  —  When  a  person  dies,  leav- 
ing a  fair  amount  of  personal  property,  his  estate  is  usually  set 
apart,  in  our  modern  English  and  American  practice,  to  be  set- 
tled under  the  immediate  supervision  of  local  and  usually  county 
tribunals  invested  with  appropriate  functions,  whose  fundamen- 
tal duty  it  is  to  exact  a  settlement  according  to  law  ;  and,  more- 
over, with  due  respect  to  the  last  wishes  of  the  deceased,  if  such 
wishes  were  properly  expressed  by  him  during  his  lifetime  while 
of  sound  and  disposing  mind. 

The  main  objects  proposed  are  these  :  that  the  personalty  of 
the  deceased  be  properly  collected,  preserved,  and  (together 
with  income  and  profits)  duly  accounted  for ;  that  his  just  debts 
and  the  charges  consequent  upon  his  death  and  the  administra- 
tion of  his  estate  be  paid  and  adjusted,  with  such  discrimination 
only  as  the  law  recognizes  in  case  the  assets  should  prove  in- 
sufiticient ;  that  the  immediate  necessities  of  spouse  and  young 
children  (if  there  be  such  surviving)  be  provided  for  as  the  stat- 
ute may  have  directed ;  that  the  distribution  and  division  of  the 
residue  or  surplus  of  the  estate  be  made  among  such  persons 
and  in  such  proportions  as  the  will  of  the  deceased,  if  there  be 
one,  otherwise  the  statute  of  distribution  may  have  prescribed. 

I 


§    2  EXECUTORS    AND    ADMINISTRATORS.  [PART  I. 

Where  the  deceased  left  what  purports  to  be  a  will,  the  solemn 
establishment  of  that  will  and  its  public  authentication  require 
further  attention  from  such  tribunals ;  specific  or  general  lega- 
cies must  be  paid  next  after  the  debts,  taking  their  peculiar 
priorities,  and  the  balance  or  residuary  fund  reckoned  up  and 
adjusted  accordingly,  if  not  already  exhausted. 

Whether  a  last  will,  entitled  to  probate,  be  left  or  not,  the 
management  of  the  estate  must  be  judicially  committed  to  the 
person  or  persons  rightfully  entitled  to  represent  the  deceased ; 
he  or  they  qualif}-ing,  by  giving  bond  with  or  without  security, 
as  the  case  may  be,  for  a  faithful  performance  of  the  trust,  and 
thereupon  receiving  letters  under  the  seal  and  authentication  of 
the  court.  And  this  by  way  of  public  credentials  or  a  com- 
mission, to  be  respected  in  all  other  courts  throughout  the  juris- 
diction of  the  State  or  country.  All  this  judicial  supervision 
and  direction  is  exercised,  in  England  and  the  United  States, 
by  peculiar  tribunals,  whose  jurisdiction  and  powers  are  in  mod- 
ern times  usually  defined,  if  not  created,  by  local  statutes.  But 
chancery  courts  in  England  have  a  considerable  supervision  of 
such  matters  besides. 


§  la.  Death  Fundamental  to  Jurisdiction  ;  Survivorship.  —  The 
death  of  the  person  who  is  claimed  to  have  left  a  will  or  died 
intestate  is  fundamental  to  all  jurisdiction  in  settling  his  estate; 
and  whatever  may  have  been  the  occasion  of  error,  letters 
granted  upon  the  estate  of  a  living  person  are  null  and  cannot 
take  effect  against  him."  So  may  the  question  of  actual  sur- 
vivorship be  important  where  one  is  to  inherit  from  another, 
whether  by  testacy  or  intestacy,^ 

§ 
Administrators,  and  their  Functions  ;   Administration.  —  1  he  estates 

of  deceased  persons,  it  is  thus  perceived,  are  well  classified  as 

'  §§  55'  9''  '^>o-  8  H.  L.  C.  183  ;  Alston's  Goods,   (1892) 

*  lb.  Thus  where  husband  and  wife     P.  142.     And  see  general  works  on  Evi- 
share  some  calamity,  such  as  a  ship-     dence.     See  also  Underwood  v.  Wing, 
wreck,  and  there  is  no  evidence  that  one     4  DeG.  M.  &  G.  633,661. 
survived  the  other.     Wing  v.  Angrave, 

2 


PART  I.]  INTRODUCTION.  §   2 

testate  and  intestate :  the  one  class  embracing  all  estates  to  be 
settled  under  a  will ;  the  other,  all  estates  for  settlement  where 
there  was  no  will.  In  many  respects,  such  as  the  collection 
and  preservation  of  effects,  and  the  payment  of  debts  and 
charges,  there  is  little  or  no  essential  difference  found  in  our 
modern  practice  between  these  two  classes.  For  it  is  a  funda- 
mental maxim  of  our  common  law  that  all  just  existing  debts 
shall  be  paid  out  of  one's  property  before  any  further  disposition 
thereof  can  take  effect.'  But  great  differences  are  perceived 
when  it  comes  to  that  further  disposition  of  the  dead  person's 
property ;  a  testate  estate  being  divided  and  distributed  accord- 
ing to  the  testamentary  directions  of  the  deceased,  while  that 
of  an  intestate  goes  by  the  public  mandate.  The  representa- 
tive follows  a  private  plan  and  specifications  in  the  one  case, 
but  not  in  the  other,  so  far  as  he  deals  with  the  surplus  above 
debts  and  charges. 

This  representative  under  a  will,  so  peculiarly  intimate  in  his 
relation  with  the  thoughts  and  wishes  of  the  deceased,  is  styled 
an  executor  in  the  former  instance  ;  an  executor  being  the  per- 
son who  is  charged  by  the  testator  with  the  execution  or  putting 
in  force  of  his  will.^  The  corresponding  representative,  for  other 
cases,  is  an  administrator ;  this  term  applying,  not  only  where 
the  deceased  person  left  no  valid  will  at  all,  but  where  the  es- 
tate is  testate,  and  yet,  for  one  reason  or  another,  there  is  no 
person  found  to  execute  the  will  whom  the  testator  may  be  said 
to  have  actually  designated  or  selected  for  the  office.^  And 
hence  arises  some  confusion  in  legal  terms  when  we  seek  to  dis- 
tinguish between  the  representatives  of  testate  and  of  intestate 
estates  ;  though  the  words  executors  and  administrators  are  com- 
monly employed  in  that  connection  as  though  correlative. 

The  common-lavv  distinction  is,  in  fact,  here  founded  in  con- 
siderations of  privilege  attached  to  the  personal  choice  by  the 
deceased  of  his  own  representative,  —  considerations  which  in 
the  lapse  of  time  have  lost  much  of  their  early  force.  The  ex- 
ecutor was  said,  by  English  jurists,  to  derive  his  authority  from 


'  Coke,  ,2d   Inst.   398;    Bouv.   Diet.         ^2  Bl.  Com.  503;  3  Atk.  Ch.  301. 
'  Administration."  ^  2  Bl.  Com.  494. 


§   2  EXECUTORS    AND    ADMINISTRATORS.  [PART   I, 

the  will,  rather  than  from  any  judicial  appointment  at  all ;  and 
hence  his  formal  qualification  for  the  office  was  deemed  of  sec- 
ondary consequence  ;  the  English  temporal  courts  showing  no 
great  solicitude  for  upholding  that  peculiar  authority  over  dece- 
dents' estates  which  spiritual  tribunals  asserted.  On  the  other 
hand,  it  was  admitted  that  an  administrator's  authority  was  de- 
rived wholly  from  the  appointment  made  by  such  tribunals, 
though  this  appointment  were  in  literal  jiursuance  of  the  statute." 
The  modern  tendency,  however,  both  in  England  and  the  United 
States,  is  to  assimilate  the  powers  and  duties  of  these  two  classes 
of  legal  representatives  so  far  as  may  be  ;  to  recognize  the  de- 
parture of  their  several  functions  only  so  far  as  the  distinction 
between  settling  estates  testate  and  intestate  fairly  produces  it ; 
to  require  both  executors  and  administrators  to  take  out  letters 
and  qualify  in  the  same  special  court,  rendering  their  accounts 
upon  a  like  j^lan  and  under  a  like  supervision  ;  and  to  rule 
that  the  choice  of  an  executor  by  the  testator  gives  the  one  a 
marked  advantage  for  securing  the  judicial  appointment  in  pref- 
erence to  others  desiring  the  office,  and  upon  peculiarly  favora- 
ble terms,  jjcrhaj^s,  as  to  furnishing  security,  but  not  so  as  to 
override  or  dispense  with  the  judicial  discretion  altogetlier. 

Nevertheless,  executors  and  adini)iistyators  are  technically 
distinguished  in  our  law  as  before.  One  selected  judicially  to 
settle  an  estate  under  a  will,  not  being  named  in  that  will,  is 
styled  an  administrator  (not  executor),  with  the  will  annexed  ; 
and  there  is  no  executor,  so  to  speak,  apart  from  some  designa- 
tion under  the  will  of  the  person  who  shall  officiate  in  the  trust. 
Consequently,  "execution"  being  a  term  quite  liable  to  legal 
misconception,  and  in  probate  law  confined  at  all  events  to  the 
narrower  connection,  the  word  "administration  "  is  at  the  pres- 
ent day  acquiring  a  broad  significance,  as  more  nearly  synony- 
mous with  the  general  management  and  settlement  of  a  deceased 
person's  estate.'  For,  as  a  jurisprudence  develojies,  which  takes 
in  the  whole  compass  of  our  highly  interesting  and  important 

'See  1  Bl.  Com.  495;  Part  II.,  post,  are  arranged  with  reference  to  such  a 

as  to  appointment.  heading ;  though  the  more  common  title 

=■566^.^.  Rouv.  Diet.     "  Administra-  is  still  like  that  of  the  present  volume, 

lion."     Some  digests  of  the  present  day  "  Executors  and  Administrators." 


PART  I.]  INTRODUCTION  §  4 

subject,  the  necessity  becomes  felt  for  a  single  appropriate  and 
universal  term,  applicable  to  estates  whether  testate  or  intestate, 
and  to  the  winding-up  of  a  dead  owner's  affairs  under  spiritual 
or  probate  supervision ;  and  such  a  term  the  common  law  does 
not  supply. 

§  3.    "WLether  there  may  be  a  Will  -without  an  Executor.  —  The 

logical  distinction  between  executors  and  administrators  appears 
to  have  been  more  precisely  stated  in  the  ancient  days  of  our 
law  than  in  modern  times.  For,  to  quote  from  Swinburne, 
"  the  naming  or  appointment  of  an  executor  is  said  to  be  the 
foundation,  the  substance,  the  head,  and  is  indeed  the  true  for- 
mal cause  of  the  testament,  without  which  a  will  is  no  proper 
testament,  and  by  the  which  only  the  will  is  made  a  testament."' 
And  other  early  English  authorities  are  to  the  same  purport.^ 
Nevertheless,  our  modern  practice  proceeds  upon  quite  a  differ- 
ent theory  ;  and  while  there  can  be  no  executor  without  some 
will  to  name  or  constitute  him,  it  is  certain  that  a  will  properly 
executed  may  be  valid  without  naming  an  executor  at  all,  or  not- 
withstanding the  executor  named  dies  before  probate  or  from 
one  cause  or  another  becomes  disqualified  from  acting ;  in  any 
of  which  contingencies  the  probate  court  will  constitute  an  ad- 
ministrator with  the  will  annexed.^ 

§  4.  Devise  and  Bequest  or  Legacy  distinguished;  -wrhether  a 
Will  can  operate  upon  Property  afterwards  acquired.  —  In  its  lit- 
eral and  technical  import  the  word  devise  refers  only  to  real 
estate ;  whereas  a  bequest  is  a  gift  by  will  of  personal  property. 
Under  a  will,  to  devise  is  to  give  real  estate  to  another ;  and  to 
bequeath  is  to  give  personal  property  to  another."*  The  term 
legacy,  too,  which  is  a  gift  by  last  will,  applies  more  familiarly 
(as  the  history  of  wills  at   English  law  indicates)   to  personal 

'  Swinb.  pt.  I,  §  3,  pi.  19.  been  a  testament  had  an  executor  been 

^  Godolphin,  *pt.   i,  c.   1,  §  2  ;  Plowd.  named,  was  considered  obligatory  upon 

185  ;  Wms.  Exrs.  7.  the  administrator,  under  the  appellation 

'See  2   Chanc.   Rep.   112;    Appoint-  of  "  codicil."     Wms.  Exrs.  7. 

ment, /cjj-/,  Part  II.     Even  under  the  old  ■•  Bouv.  Diet.  "Devise,"   "Bequest," 

law,  an  instrument  which  would  have  etc. 

5 


§  4  EXECUTORS    AND    ADMINISTRATORS.  [PART   I, 

property,  or  to  money,  goods,  and  chattels,  although  sometimes 
employed  with  further  reference  to  a  charge  upon  real  estate.' 
In  fact,  a  de\nse  of  lands,  when  such  dispositions  became  per- 
mitted, was  seen  to  be  distinguishable  in  its  operation  from  a 
will  or  testament ;  for  a  will  or  testament  operated  in  general 
terms  upon  all  the  personal  property  of  which  the  testator  might 
die  possessed,  save  so  far  as  he  chose  to  except  particular  chat- 
tels ;  whereas  a  devise  of  lands  was  treated  in  the  courts  rather 
as  a  conveyance  by  way  of  appointment  of  particular  lands  to  a 
particular  devisee.'  Upon  such  a  principle  of  distinction  it  be- 
came established  in  practice  that  one  could  devise  only  lands  of 
which  he  was  seized  at  the  time  of  its  execution  ;  whereas  his 
will  and  testament  would  operate  of  right  upon  personal  prop- 
erty before  or  afterwards  acquired,  provided  only  that  he  died 
possessed  of  it.^ 

The  modern  extension  of  testamentary  facilities  to  the  dis- 
position of  a  testator's  whole  estate,  whether  real,  personal,  or 
mixed,  tends,  however,  to  subvert  distinctions  of  this  latter  de- 
scription. In  the  United  States,  wills  are  usually  permitted  to 
operate  upon  real  estate  and  descendible  interests  of  every  de- 
scription ;  and  local  statutes  expressly  recognize  the  right  of  a 
testator  to  pass  his  after-acquired  lands  and  landed  estates  and 
interests,  giving  effect  to  his  manifest  intention  accordingly. 
Manifest  intention  is  the  rule  of  guidance  correspondingly  as  to 
all  dispositions  of  personalty,  though  presumptions  as  to  that 
intention  may  differ;  and  hence  "will  and  testament"  have 
long  been  the  words  popularly  used  in  this  country  ■♦  as  applica- 
ble to  one's  property  of  whatever  description  which  he  disposes 
of  with  testamentary  intention.  In  England,  too,  "devise," 
since  the  year  1837,  has  lost  much  of  its  special  significance; 
for  the  statute  of  wills,  i  Vict.  c.  26,  extends  the  power  of  dis- 
posing by  one's  will  duly  executed  to  all  such  real  and  personal 

'  Bouv.    Diet.    "  Legacy."     And    see  "  Chancellor  Kent  observed  this  pop- 

post  as  to  the  payment  of  legacies.  ular  use  of  words  in  the  United  States 

'  Harwood  v.  Goodright,  Cowp.  90  ;  early  in  the  present  century.     See  4  Kent 

4  Kent  Com.  502  ;  Wms.  Exrs.  6,  7.  Com.  501.     And  see  Wms.  Exrs.  6,  7, 

>  Wind   V.    Jekyl,    1    1'.   Wms.   575;  Perkins's  «. 
Wms.  Exrs.  6,  7. 

6 


I'ART   I.]  INTROni'CTION.  §    5 

estate  (including  landed  interests)  as  the  testator  may  be  enti- 
tled to  at  the  time  of  his  death,  notwithstanding  his  title  vests 
subsequently  to  the  execution  of  his  will' 

§  5 .  Personal  Property  is  administered ;  -whether  Real  Estate 
can  be  applied.  —  The  management,  settlement,  or  administra- 
tion of  the  estates  of  deceased  persons  relates  primarily  and 
fundamentally  to  personal  property  alone ;  for  with  the  real  es- 
tate of  the  testate  or  intestate  decedent,  his  executor  or  admin- 
istrator has  at  common  law  no  concern.^  This  rule  is  owing 
partly  perhaps  to  the  jealousy  with  which  bishops  and  their  tri- 
bunals of  special  jurisdiction  over  estates  of  the  dead  were  for- 
merly regarded  ;  but  we  should  chiefly  ascribe  it  to  that  stability 
of  real  estate  tenure  as  contrasted  with  title  to  personal  property, 
which  is  at  the  basis  of  English  policy  and  English  jurispru- 
dence. An  ancestor's  lands  vested  in  his  descendant  at  his  de- 
cease without  further  formality  ;  the  heir-at-law  became  invested 
with  the  dignities  and  responsibilities  pertaining  to  the  founder ; 
in  England  a  statute  of  descents  was  not  framed  like  a  statute 
of  distributions.  "  By  the  laws  of  this  realm,"  observes  Swin- 
burne, one  of  our  earliest  writers  of  repute  on  testamentary  law, 
"  as  the  heir  hath  not  to  deal  with  the  goods  and  chattels  of  the 
deceased,  no  more  hath  the  executor  t<^  do  with  the  lands,  tene- 
ments, and  hereditaments"  ;^  and  if  the  executor  as  such,  not- 
withstanding the  confidence  reposed  in  him,  took  no  interest  in 
the  real  estate  of  his  testator,  still  less  did  an  administrator  in 
the  lands  of  his  intestate.  Debt  and  charges,  nevertheless,  re- 
main obligatory  upon  the  estate,  so  long  as  property  of  the  de- 
ceased may  be  found  for  their  satisfaction ;  and  hence,  if  the 
personal  assets  prove  insufficient,  the  lands  may  be  applied  to 
make  up  the  deficiency  on  license  of  the  court ;  modern  statutes 
in  England  and  the  United  States  greatly  enlarging  all  earlier 
facilities  in  this  respect.  Moreover,  an  executor  may  have  been 
empowered  in  fact  to  deal  with  real  estate  under  the  will  of  his 
testator  ;  who  naturally  on  his  part  does  not  bestow  the  bulk  of 

'  See   Stat,  i  Vict.  c.  26,  §  3  ;  Wm.s.         -  This  subject  is  considered  at  length, 
Exrs.  preface  ;   Schouler  Wills.  post. 

3  Swinb.  pt.  6,  §  3,  pi.  5. 


§  6  EXECUTORS    AND    ADMINISTRATORS.  [PART  1. 

his  fortune  upon  those  surviving  him  in  these  days  without  con- 
templating a  general  disposition  of  his  property,  real,  personal, 
and  mixed. 

A  schedule  of  real  estate  of  the  deceased  is  therefore  to  be 
included  in  the  inventory  which  an  executor  or  administrator 
returns  to  the  court  from  whose  appointment  he  derives  full 
authority  ;  the  schedule  of  personal  property,  howe\'cr,  serv- 
insr  alone  as  the  basis  of  his  accounts.'  And  while  such  real 
estate,  in  the  absence  of  a  will  making  inconsistent  provi- 
sions, may  still  as  formerly  be  said  to  vest  in  the  heir  at  once, 
upon  the  owner's  decease,  an  incumbrance  or  cloud  remains  on 
the  title  until  a  sufficient  period  has  elapsed  for  presenting  claims 
against  the  estate  or  it  otherwise  appears  clear  that  the  personal 
representative  will  not  be  compelled  to  resort  to  the  land  because 
the  personal  assets  prove  deficient  for  the  purposes  of  winding 
up  the  estate.^ 

§  6.  Succession  in  the  Civil  La-wr  ;  as  distinguished  from 
Administration.  —  Our  common-law  system  of  "administration" 
(using  this  word  in  its  broadest  sense  )^  whereby  a  deceased 
person's  estate  becomes  sequestered,  so  to  speak,  and  confided 
to  legal  representatives  for  the  purposes  we  have  described, 
appears  to  have  no  precise  counterpart  in  Roman  jurisprudence. 
"  Succession  "  is  a  general  term  used  by  civilians  with  reference 
to  the  status  derived  from  the  transmission  of  the  rights  and 
obligations  of  a  deceased  person  ;  but  "  title  by  succession  "  is 
very  different  from  that  representative  or  trust  title  to  person- 
alty which  one  takes  at  our  law  as  an  executor  or  administrator  ; 
being  indeed  so  complex  and  abstruse  a  topic  as  hardly  to  deserve 
our  studious  attention.  The  heir  stepped  into  the  place  vacated 
by  the  deceased,  enjoying  his  property  rights,  and  burdened 
with  his  property  responsibilities ;  this  was  the  fundamental 
principle  of  succession,  the  successor  himself  being  called  at 
Roman  law  liacres,  and  that  to  which  he  succeeded  Jiacrcditas. 
Upon  such  heir  (whose  status  was  somewhat  like  that  of  our 

'See  as  to  Inventory  and  Asset.s,  ^This  subject  will  be  considered  at 
post.  length, /cJj-/,  §§  212-218. 

^  Supra,  §  2. 

8 


PART    1. 1  INTRODUCTION.  §   6 

common-law  heir  to  whom  real  estate  descends,  when  the  ances- 
tor has  left  no  other  property)  devolved  at  Roman  law  the  per- 
sonal duty  of  discharging  legal  debts  and  the  incumbrances  of 
the  deceased ;  and,  moreover,  if  the  deceased  left  a  will,  of  sat- 
isfying the  special  testamentary  provisions  in  addition.  In  this 
latter  respect,  it  appears  that  the  heir  was  bound  to  pay  all 
legacies  so  far  as  the  property  descending  to  him  might  suffice, 
and  no  farther  ;  but  as  to  the  former,  legal  consistency  for  the 
space  of  a  thousand  years  in  Roman  history  compelled  the  suc- 
cessor to  pay  all  the  debts  of  his  deceased  predecessor,  whether 
the  property  obtained  from  the  estate  proved  sufficient  or  not  ; 
a  harsh  but  legitimate  consequence  of  the  theory,  which  disap- 
peared in  the  age  of  Justinian,  at  which  era  inventories  were 
introduced  in  order  that  the  estates  of  heir  and  decedent  might 
be  separated."  Religious  scruples  had  all  the  while  prompted 
the  successor  of  an  insolvent  to  make  personal  sacrifice  ;  for 
religious  and  temporal  duties  were  blended  in  the  succession  ; 
and  the  estate  of  the  deceased  who  died  insolvent  was  stig- 
matized as  damnosa.  The  heir  enjoyed  of  course  the  usual 
privileges  of  a  residuary  legatee  ;  and  after  the  changes  intro- 
duced by  Justinian,  two  classes  of  heirs  were  found  to  have 
sprung  up  in  Roman  practice  :  the  one  consisting  of  those  who 
made  no  inventory,  and  bore  the  ancient  burdens  of  a  legal  suc- 
cession ;  the  other,  of  those  who  made  an  inventory,  and,  leav- 
ing the  decedent's  estate  to  be  honored  or  dishonored  upon  its 
own  merits,  required  creditors  to  confine  their  claims  to  assets 
available  from  the  estate,  not  contributing  from  their  own  private 
fortunes  to  make  up  a  deficiency.^ 

Thus  was  the  old  theory  of  succession  gradually  forsaken  in 
the  latter  days  of  the  Roman  empire,  the  heir  becoming  more 
nearly  in  effect  like  what  we  style  an  executor  or  administrator, 
if  so  he  preferred.  It  is  to  be  presumed  that  the  person  who 
was  instituted  heir  might  renounce  the  succession  if  he  chose, 
and  thus  escape  all  burdensome  obligations.  And  in  default  of 
a  testamentary  succession, —  that  is,  the  constitution  of  the  heir 

'Hunter   Roman   Law,  567,  568.      In         ^Hunter     Roman     Law,     567,     568, 
a  few  instances  prior  to  Justinian   tlie     574-576. 
Praetor  allowed  a  separatio  bonortim .   II). 

9 


§   7  EXECUTORS    A\n    ADMINISTRATORS.  [PART   I. 

by  a  will  duly  executed  in  the  forms  prescribed  by  law, —  or 
where  he  renounced  the  inheritance,  a  legal  succession  arose  in 
favor  of  the  nearest  relatives  of  the  deceased ;  moreover,  an 
irregular  succession  became  established  by  law  in  favor  of  cer- 
tain persons  or  of  the  State  in  default  of  heirs  either  legal  or 
instituted  by  testament.  Such  doctrines  certainly  pertain  to 
the  civil  law  of  modern  Europe  and  of  American  colonies 
founded  by  the  French  and  Spanish.' 

"Administration"  and  "administrators"  are  terms  not  em- 
ployed, however,  by  either  the  ancient  or  modern  civilians,  as  it 
would  appear,  though  our  "administration  "  somewhat  resembles 
the  bonorum  possessio  of  imperial  Rome.^  But,  as  concerns 
the  settlement  of  testate  estates,  while  the  Roman  testator  sel- 
dom committed  such  functions  to  other  persons  than  the  testa- 
mentary heir  himself,  and  similar  restraints  are  still  imposed  in 
some  European  localities,  modern  custom  in  France  greatly  fa- 
vors the  special  institution  of  executors,  and  leaves  the  testator 
at  liberty  to  name  persons  who  shall  take  all  or  part  of  the 
movable  property  for  executing  the  dispositions  under  the  will 
confided  to  their  care.^  And  thus  may  one's  testamentary  dis- 
positions take  effect  and  be  fully  executed,  notwithstanding  the 
absence,  death,  or  possible  misconduct  of  the  testamentary  heir, 
and  this  by  means  of  representatives  whose  judgment,  integrity, 
and  business  qualifications  may  be  weighed  without  the  prepos- 
sessions of  family  affection.  For  freedom  in  the  selection  of 
executors  under  a  will  is  the  surest  pledge  of  the  faithful  exe- 
cution of  that  will  according  to  the  interests  of  all  concerned 
under  its  provisions. 

§  7.  Testacy  preferred  to  Intestacy  in  Civil  and  Common  Law  ; 
Former  Abuses  in  English  Law  where  Intestate  Estates  were  ad- 
ministered.—  Under  both  the  civil  and  common-law  traditions, 

"  Domat  Civ.  Law  by  Strahan,  §  3125  ;  land,  prevailed  in  New  York,  the  exe- 

Bouv.  Diet.  "Succession."  cution  of  a  will  devolved  upon  the  "in- 

"  Colquhoun  Rom.  Civ.  Law,  §  1413.  stituted  heir"  without  issuance  of  any 

'  Domat  Civ.  Law,  §§  ZZV^-ZiZ^-     I"  letters  whatever.     Van  Gieson  v.  Bridg- 

our  early  colonial   day.s,  when  the  civil  ford,  iS  Hun  (N.Y.)  73. 

law,  as  modified  by  the  usages  of  liol- 

10 


PART  I.]  INTROnUCTION.  §   7 

as  it  thus  appears,  a  person  of  fortune  has  been  expected  to 
dispose  of  his  personal  estate  by  a  will  ;  and  tracing  cither  law 
to  its  source,  we  shall  find  testacy  in  that  respect  decidedly 
preferred  to  intestacy.  Indeed,  the  contempt  of  our  early  Eng- 
lish law  for  those  who  from  want  of  foresight  or  opportunity 
died  leaving  behind  them  personal  property  not  bequeathed  by 
some  last  will  and  testament  in  a  formal  manner  was  strikingly 
manifested.  The  intestate  came  into  the  category  of  bastards 
and  other  unfortunates.  The  king,  according  to  the  old  maxims, 
might  seize  upon  his  goods  and  chattels  as  parens  patriae  ;  and 
for  a  considerable  time  the  feudal  superior  or  lord  of  a  demesne 
exercised  by  delegation  the  right  of  administration  ;  after  which 
this  branch  of  the  prerogative  passed  to  the  bishop  or  ordinary 
in  the  several  dioceses  upon  a  trust  to  distribute  the  residue  of 
the  intestate's  goods  in  charity  to  the  poor  or  for  what  were 
deemed  pious  uses.  These  prelates  soon  abused  a  trust  for 
which  they  were  held  accountable  in  truth  only  to  God  and 
their  spiritual  superiors  ;  they  would  take  to  themselves,  in  their 
several  jurisdictions,  the  whole  surplus  of  an  intestate's  estate 
after  deducting  the  partes  rationabiles ;  that  is  to  say,  two 
thirds  to  which  one's  wife  and  children  (if  he  left  such)  were 
entitled  ;  and  this  without  even  paying  his  just  debts  and  law- 
ful charges.  That  iniquitous  rule  Pope  Innocent  IV.  recog- 
nized as  the  established  common  law  of  Great  Britain  as  early 
as  the  middle  of  the  thirteenth  century.' 

Two  acts  of  Parliament  put  an  end  to  this  abuse  of  spiritual 
power:  (i)  the  Statute  of  Westm.  II.  (declaratory  of  the  com- 
mon law),  which  required  the  ordinary  to  pay  the  debts  of  the 
intestate  so  far  as  his  goods  extended,  in  the  same  manner  that 
executors  were  bound  to  do  where  one  died  testate ;  (2)  the 
Statute  31  Edw.  III.  c.  11,  under  whose  later  provisions  the 
ordinary  ceased  to  be  a  sort  of  Jiaercs  under  an  intestate  succes- 
sion, and  became  obliged  to  depute  administration  to  the  nearest 
and  most  lawful  friends  of  the  deceased,  instead  of  administer- 
ing as  before  in  person  and  without  accountability.^  These 
statutes  went  far  towards  altering  former  hardships  and  bring- 

'  2  Bl.  Com.  495,  496.  7th    Eng.   ed.  401  ;   Snelling's   Case,  5 

^2   Bl.  Com.  495,  496;  Wms.   Exrs.     Rep.  82  b. 

I  I 


§  8  p:xecutoks  and  administrators.  [part  i. 

ing  executors  and  administrators  upon  an  equivalent  footing  of 
legal  accountability  to  all  those  interested  in  the  estate  ;  though 
abuses  continued  as  to  surpluses,  for  which  the  temporal  admin- 
istrator in  his  turn  deserved  reproach,  the  ecclesiastical  courts 
having  endea\'ored  in  vain  to  force  a  proper  distribution  of  in- 
testate estates  by  taking  bonds  from  these  legal  representatives 
to  that  intent.  At  length  was  enacted  the  Statute  of  Distribu- 
tions, 22  &  23  Car.  II.  c.  10,  and  the  administrator  of  an  intes- 
tate estate  could  no  longer  administer  for  his  personal  benefit," 
The  first  American  colonies  were  planted  before  the  date  of 
this  last  important  enactment  of  the  English  Parliament ;  but 
positive  enactments  of  a  similar  character  have  long  prevailed 
in  every  State  of  this  Union.'  And  how  much  of  excellent  leg- 
islation on  dry  subjects  our  countries  of  English  origin  trace  to 
the  reign  of  that  good-natured  and  dissipated  monarch  who  fol- 
lowed Cromwell  and  the  Commonwealth,  no  jurist  can  ever 
forget. 

§  8.  Wills  of  Real  and  Personal  Property,  -whether  distinguish- 
able of  Right ;  Modern  Statute  of  Wills. — From  the  time  of  the 
Norman  Conquest  until  the  reign  of  Henry  VIII.  an  English 
subject  had,  strictly  speaking,  no  right  to  dispose  by  will  of  his 
real  estate  ;  but  the  land  would  descend  to  the  heir  by  force  of 
the  law  of  descents  which  favored  a  first-born  son  above  all  other 
children.  It  was  constantly  admitted,  however,  that  wills  of 
chattels  or  personal  property  might  be  made ;  and  the  term 
"chattels,"  of  course,  embraced  terms  for  years  and  other  chat- 
tels real,  which,  being  of  less  dignity  than  a  freehold,  followed 
necessarily  the  same  general  doctrines  as  chattels  personal. ^ 
But  the  acts  32  &  34  Henry  VIII.  sanctioned  to  a  considerable 
extent  the  devise  of  lands,  upon  the  testator's  observance  of 
certain  formalities  which  were  further  set  out  by  the  celebrated 
Statute  of  Frauds  (29  Car.  II.). 

In  the  United  States  primogeniture  was  early  abolished  with 
all   its  attendant  privileges,  or  rather  preferences ;  and  our  an- 

'  Wnis.  Exrs.  1484.  note  (i)  by  Ilargrave;   i    Schoul.   Pars. 

*  ^ett  post  as  to  Distribution.  Prop.  §  9. 

^  VVms.    Exrs.    i;    Co.    Litt.     in  b. 

12 


PART  I.]  INTRODUCTION.  §  Q 

cestors,  from  the  earliest  colonial  establishment,  appear  to  have 
permitted  the  devise  of  lands  by  will  under  statute  regulations 
based  upon  these  English  enactments.'  Since  our  independence 
of  Great  Britain,  American  policy  has  favored,  in  the  several 
States,  the  execution  of  wills  with  the  same  formalities,  whether 
to  pass  real  or  personal  property,  ov  both  kinds  together.  The 
same  just  doctrine  has  at  length  gained  a  firm  footing  in  Eng- 
land by  operation  of  the  important  modern  Statute  of  Wills,  i 
Vict.  c.  26  (which  affects  all  English  wills  made  from  and  after 
January  i,  1838);  under  whose  provisions  it  is  rendered  lawful 
for  every  person  to  devise,  bequeath,  and  dispose  of  all  real  es- 
tate and  all  personal  estate  which  he  shall  be  entitled  to  at  the 
time  of  his  death,  either  at  law  or  in  equity,  provided  the  will 
be  executed  with  the  formalities  therein  prescribed.^ 

§  9-  Ancient  Doctrine  of  the  Reasonable  Parts  of  "Widow  and 
Children  ;  Wills  of  Personal  Property  affected.  — ■  But  while  the 
common  law  permitted  one  to  bequeath  his  personal  property 
by  will,  a  restriction  appears  to  have  prevailed  in  the  reign  of 
Henry  II.  as  to  the  person  who  died  leaving  a  wife  or  issue  or 
both  surviving  him.  In  such  a  case  the  man's  goods  and  chat- 
tels, if  he  left  both  wife  and  children,  were  di\'ided  into  three 
equal  parts  :  one  went  to  his  heirs  or  lineal  descendants,  an- 
other to  his  wife,  and  only  the  remaining  third  went  according 
to  his  own  express  disposition  ;  though,  if  only  a  wife  survived 
him,  or  only  issue,  a  moiety  went  to  such  wife  or  such  issue, 
and  he  might  bequeath  the  other  moiety.  These  shares  of 
wife  or  children  were  called  their  reasonable  parts,  and  the  writ 
de  ratio7iabili  parte  bonorum  lay  for  the  recovery  of  these  por- 
tions. If,  however,  the  testator  died.  leaving  neither  widow  nor 
issue,  his  will  might  operate  so  as  to  dispose  absolutely  of  all  his 
personalty ;  and  the  legal  restriction  itself,  whether  of  general 
force,  or  existing  only  in  certain   localities  by  custom,  gradually 

'4   Kent     Com.    504,    505;  Part    II.,  the  preface  to  the  6th  and  later  editions 

^osi.  of  Williams's  work ;  also  in   Schouler 

^Wms.  Exrs.  7th  ed.  5.     This  Stat.  Wills   (1S87),  appx.     See  Part  II.,  c.  i, 

(i  Vict.  c.  26)  is  set  forth  at  length  in  post,  as  to  the  appointment  of  executors. 

13 


§    lO  EXECUTORS    AND    ADMINISTRATORS.  [PART   I. 

disappeared,  the  date  of  its  extinction  as  well  as  of  its  origin 
being  obscure.' 

§  10.  Jurisdiction  in  the  Grant  of  Letters  Testamentary  and 
Administration;  English  Ecclesiastical  Courts.  —  Jurisdiction  over 
wills  and  their  probate  in  England  belonged,  before  ecclesiasti- 
cal functions  were  exercised  in  such  cases,  to  the  county  court 
or  to  the  court  baron  of  the  manor  where  the  testator  died  ;  and 
before  these  county  tribunals  all  other  matters  of  civil  dispute 
were  determined.  This  power  of  the  probate  existed  down  to 
quite  a  recent  period  in  certain  English  manors,  and  so  as  to 
preclude  the  interference  of  the  ordinary.  The  earl  formerly  pre- 
sided over  this  county  court ;  though  subsequent  to  the  introduc- 
tion of  Christianity  the  bishop  sat  with  the  earl.  Soon  after  the 
Norman  invasion,  however,  the  ecclesiastical  and  temporal  juris- 
dictions were  separated  ;  and  gradually  the  bishops  became  in- 
vested with  plenary  authority  as  to  matters  which  pertained  to 
the  estates  of  the  dead.  Some  English  writers  appear  to  have 
regarded  this  authority  as  in  fact  usurped  by  the  ecclesiastics.^ 
But  Blackstone  ascribes  it  rather  to  the  crown's  favor  to  the 
Church,  citing  the  observation  of  Perkins  that  the  law  consid- 
ered spiritual  men  of  better  conscience  than  laymen,  and  thought 
that  they  had  more  knowledge  as  to  what  things  would  conduce 
to  the  benefit  of  the  soul  of  the  deceased. ^  And  according  to 
our  great  English  commentator,  the  disposition  of  intestates' 
effects  once  granted  in  confidence  by  the  crown  to  the  ordi- 
nary, the  probate  of  wills  followed  as  of  course :  for  it  was 
thought  just  and  natural  that  the  will  of  the  deceased  should  be 
proved  to  the  satisfaction  of  the  prelate,  whose  right  of  dis- 
tributing one's  chattels  for  the  good  of  his  soul  was  effectually 
superseded  thereby.-*  This  ecclesiastical  or  spiritual  jurisdic- 
tion —  attended  as  it  was  with  flagrant  abuses  at  which  the 
Papacy  seems  to  have  connived  —  doubtless  inspired  dread  and 

'  Wms.  Exrs.   2,  3  ;   Co.  Litt.  176  b;  This  doctrine  will  be  noticed    again  un- 

2   Bl.  Com.    492.     English    authorities  der  the  head  of  Distribution, /^j/. 

differ  upon  the  question   whether   the  ''Colquhoun  Rom.  Civ.  Law,  §  1413. 

writ    de  radonabili  parte  bononim  was  'Perkins,  §  486;  2  Bl.  Com.  494. 

given  by  the  common  law  or  custom.  ■'2  Bl.  Com.  494. 

14 


PART   I.]  INTRODUCTION.  §    I  I 

disaffection  in  the  temporal  courts  and  among  the  English 
laity  ;  for  restraints  were  ])ut  repeatedly,  by  statute  or  judicial 
construction,  upon  the  ordinary's  authority,  even  in  cases  where 
he  strove  to  enforce  justice,  and  the  necessity  of  probating  wills 
was  reduced  to  the  narrowest  limits.' 

§  1 1.  Probate  Jurisdiction  in  the  United  States.  —  The  Ameri- 
can system  of  jurisdiction  over  estates  of  the  deceased  was  always 
far  more  simple  and  symmetrical  than  that  which  thus  grew  up 
in  the  mother  country.  Our  early  ancestors  felt  the  need  of 
some  tribunal  whence  letters  testamentary  and  of  administration 
should  issue  ;  and  at  the  same  time,  rejecting  the  idea  of  a  spir- 
itual jurisdiction  and  courts  of  bishops  such  as  then  made  part 
of  the  British  system,  they  came  back  to  the  primitive  notion 
of  county  courts  which  should  blend  probate  with  common-law 
functions.  From  these  county  courts  lay  an  appeal  to  the 
supreme  temporal  tribunal.  But,  as  population  grew,  these 
powers  exercised  by  the  inferior  courts  called  once  more  for  a 
division,  without,  however,  any  necessity  for  placating  bishops. 
New  county  tribunals  were  accordingly  erected  for  the  trans- 
action of  such  business  as  might  pertain  to  the  estates  of  the 
dead,  testamentary  trusts,  the  guardianship  of  orphans,  and  the 
like.  To  the  old  county  courts  was  left  their  common-law  juris- 
diction, while  the  supreme  court  retained  control  over  them  all, 
as  alike  the  tribunal  of  final  resort  in  matters  relating  to  com- 
mon law,  probate  and  equity. 

Such  is  the  general  origin  of  probate  jurisdiction  in  the  United 
States.  But  the  local  courts  thus  clothed  with  primary  authority 
respecting  wills  and  administration  have  borne  different  names 
and  varied  as  to  procedure  in  many  details,  in  accordance  with 
the  local  codes.  In  New  England  and  in  most  of  the  Western 
States  whose  legislation  bears  the  impress  of   New  England 

'  Colquhoun  observes  that  the  Roman  probate  jurisdiction)    prohibited   them 

law  enabled  bishops  or  their  superiors  from  meddling  with  the  probate  or  reg- 

to  maintain  suits  for  legacies  left  z«//t;j  istry  of  wills.     Colquhoun    Rom.    Civ. 

usus,  such  as  the  support  of  the  poor,  Law,  §  141 3.     Administration  of  goods 

and   the  redemption   of   captives  ;  but  at  the  English  law,  he  further  observes, 

(probably   for   the   sake   of   correcting  resembles  in  some  measure  the  ^c7«t?;-«w 

some  effort  of  the  ecclesiastics  to  usurp  possessio  of  the  Roman  law.     lb. 

15 


§    12  EXECUTORS    AND    ADMINISTRATORS.  [PART  I. 

ideas,  each  county  has  its  appropriate  court  and  judge  of  pro- 
bate ;  in  New  York  we  find  the  county  surrogate ;  in  New 
Jersey  an  orphans'  court  or  ordinary ;  in  Pennsylvania  and 
various  other  States  an  orphans'  court ;  while  in  some  parts  of 
this  country,  and  particularly  the  pioneer  region,  probate  func- 
tions are  still  exercised  by  the  general  parish  or  county  tribunals.' 
For  convenience  we  shall  in  this  treatise  speak  of  all  such  tri- 
bunals as  "  courts  of  probate  "  (such  being  perhaps  the  most 
familiar  designation),  and  the  law  pertaining  to  this  jurisdiction 
over  estates  of  deceased  persons  as  "  probate  law."  All  such 
courts  have  a  judge  or  surrogate  who  performs  the  appropriate 
judicial  duties,  and  a  register  who  records  the  wills,  letters  and 
accounts,  for  public  inspection,  and  performs  other  duties  cor- 
responding more  nearly  to  those  of  a  clerk  of  courts.  Probate 
courts  and  their  officers  constitute  a  part  of  the  local  judiciary 
system  of  each  State  ;  yet  the  functions  performed  by  judge  and 
register  are  in  many  respects  analogous  to  those  of  administra- 
tive officers. 

§  12.  Probate  Jurisdiction  in  the  United  States;  the  Subject 
continued.  —  These  probate  tribunals,  or  substitutes  for  the  Eng- 
lish spiritual  courts,  being  of  statute  creation,  their  jurisdiction 
and  practice  are  defined  at  much  length  in  the  several  States 
by  legislative  enactment.  American  policy  demands  that  estates 
of  the  dead,  if  not  really  trivial  in  character  or  amount,  shall 
pass  through  the  probate  office  for  the  benefit  of  all  parties 
interested  ;  that,  under  the  scrutiny  of  the  court,  they  shall  be 
wound  up  regularly,  expeditiously,  and  economically,  by  repre- 
sentatives whose  credentials  of  authority  are  procured  from  the 
proper  county  tribunal,  and  upon  the  filing  of  due  security  ; 
that  wills,  whether  relating  to  personal,  real,  or  mixed  property, 
shall  be  presented  for  probate  as  soon  after  the  testator's  death 
as  decency  permits ;  that  the  rights  of  all  persons  interested  in 
a  dead  person's  estate,  including  creditors,  legatees,  and  next  of 
kin,  shall  be  sedulously  protected,  whether  one  died  testate  or 
intestate ;  and  that,  so  far  as  may  be  convenient,  testaments, 

'See  2  Kent  Com,  226,  227;  .Smith  (Mass.)  Prob.  Pract.  1-5. 
16 


PART  I.]  INTRODUCTION.  §    13 

inventories,  the  accounts  of  executors  or  administrators,  and 
other  essential  documents  showing  the  condition  and  course  of 
settlement  of  each  deceased  person's  estate  shall  be  preserved 
for  inspection  in  the  county  probate  files,  and  made  matter  of 
public  registry  ;  though  practically,  if  the  representative  be 
duly  qualified,  and  the  will  or  the  fact  of  intestacy  clearly  placed 
on  record,  the  bond  of  the  representative  affords  security  to  all 
concerned  that  any  omission  to  render  an  inventory  and  accounts 
need  not  work  them  an  injury  if  private  and  family  considera- 
tions hinder  the  pursuit  of  those  full  formalities.  As  the  for- 
tunes of  most  citizens  of  consequence  may  thus  be  passed  in 
review  on  their  death,  the  living  man's  regard  for  this  sort  of 
post-mortem  reputation  among  his  surviving  relations,  neighbors, 
and  acquaintances,  imparts  a  fresh  stimulus  to  acquisition,  be- 
sides imposing  a  check  upon  loose  and  fraudulent  transactions ; 
the  muniments  of  title  to  property  by  will  and  inheritance  are 
well  preser\^ed  ;  and  not  to  mention  the  gratification  of  an  idler's 
curiosity,  facts  may  be  ascertained  at  the  probate  registry  of 
high  importance  to  the  public  assessor,  statistician,  and  local 
historian. 

§  13.  The  Subject  continued  ;  Probate  Procedure  in  the  United 
States.  —  As  befits  an  authority  which  thus  pervades  the 
sanctity  of  a  household,  crosses  the  threshold  and  exposes  to 
pubhc  view  the  chamber  of  mourning,  probate  jurisdiction  in 
the  United  States  is  exercised  with  great  simplicity  of  form  as 
well  as  decorum.  Costs  and  fees  are  trifling  ;  the  mode  of  pro- 
cedure is  by  a  simple  petition  which  states  the  few  facts  essen- 
tial to  give  the  court  jurisdiction  ;  in  various  counties  the  need- 
ful blanks  may  be  obtained  from  the  register  ;  and  of  so  informal 
a  nature  is  the  hearing  before  the  judge  or  surrogate  that  parties 
appear  often  without  legal  counsel,  the  usual  aspect  of  a  probate 
court-room  in  the  rural  counties  being  that  of  some  executive  of- 
fice where  business  is  summarily  disposed  of.  In  many  parts 
of  the  United  States  probate  courts  are  pronounced  courts  of 
record  ;  apart  from  which,  to  authenticate  wills,  qualify  execu- 
tors and  administrators,  and  supervise  the  settlement  and  dis- 
tribution of  the  estates  of  deceased  persons,  affords  to  all  such 
2  17 


13 


EXECUTORS    AND    ADMINISTRATORS. 


[part  I. 


local  tribunals  an  independent  and  highly  responsible  sphere  of 
judicial  action,  exclusive  in  the  first  instance.  In  the  construc- 
tion of  testamentary  trusts,  and  upon  various  other  subjects, 
probate  courts  exercise  often  a  concurrent  authority  with  those 
of  equity ;  and  in  general  the  right  of  appeal  from  their  decrees 
to  the  final  state  tribunal,  though  exercised  comparatively  sel- 
dom, gives  assurance  that  the  delicate  discretion  reposed  in 
these  temporal  magistrates  will  not  be  seriously  abused.'     And 


'  In  New  Jersey  the  court  of  chancery 
has  concurrent  jurisdiction  with  the  or- 
phans' court  in  the  settlement  of  the 
accounts  of  executors  and  administra- 
tors, and  may  assume  exclusive  juris- 
diction at  any  time  before  decree  of 
allowance;  but  no  interference  will  be 
made  where  the  settlement  is  proceeding 
regularly  in  the  orphans'  court  unless 
special  cause  is  shown.  Search  v. 
Search,  27  N.  J.  Eq.  137.  Under  New 
York  statutes  the  jurisdiction  of  the 
surrogate  to  compel  an  account  from 
the  fiduciary  is  not  exclusive,  but  con- 
current with  the  supreme  court,  and  the 
right  to  resort  to  an  equity  tribunal  ap- 
pears in  general  peculiarly  appropriate 
where  the  circumstances  of  a  case  are 
such  as  to  require  relief  of  a  nature 
which  the  probate  or  surrogate  tribunal 
cannot  afford.  Hadow  v.  Lundy,  59 
N.  Y.  320 ;  Rogers  v.  King,  8  Paige, 
210;  Story  Eq.  Jur.  §§  530-543.  Stat- 
utes relating  to  probate  jurisdiction 
will  not  be  presumed  to  divest  the  usual 
chancery  courts  of  their  equitable  juris- 
diction in  the  matter  of  legacies,  even 
though  a  concurrent  jurisdiction  be 
conferred.  Catlin  v.  Wheeler,  49  Wis. 
507.  And  in  matters  of  purely  equita- 
ble cognizance  relating  to  the  adminis- 
tration of  estates,  the  probate  court  has 
presumably  no  jurisdiction,  without  en- 
abling acts.  Butler  xk  Lawson,  72  Mo. 
227.  Such  a  court  must  not  entertain 
proceedings  beyond  its  statutory  func- 
tions. Winton's  Appeal,  ill  I'enn.  St. 
387.     But  a  New  York  surrogate  may 


construe  a  will  far  enough  to  determine 
to  whom  legacies  shall  be  paid.  Ver- 
planck  AV,  91  N.  Y.  439.  And  in  Mas- 
sachusetts the  probate  court,  subject  to 
appeal,  may  consider  a  question  of  cap- 
ital and  income  in  passing  upon  a  trus- 
tee's account.  N.  E.  Trust  Co.  v. 
Eaton,  140  Mass.  532. 

But  with  reference  to  procuring  let- 
ters testamentary  or  of  administration, 
the  probate  of  wills,  and  the  general 
supervision  of  inventories  and  accounts 
in  connection  with  the  settlement  of  the 
estate  of  a  deceased  person,  the  local  or 
county  probate  tribunal  acts  in  most 
States  with  plenary  powers  in  the  first 
place ;  an  appeal  lying  to  the  supreme 
tribunal  of  the  State,  at  the  instance  of 
any  person  aggrieved  by  the  decree. 
As  to  revising  a  probate  decree  which 
has  been  once  affirmed  on  appeal,  see 
Gale  V.  Nickerson,  144  Mass.  415. 

Rules  for  the  guidance  of  the  county 
probate  courts  are  in  various  States  left 
to  the  supreme  judicial  court  (which  is 
the  supreme  court  of  probate) ;  and  to 
such  rules  when  made  and  promulgated 
each  probate  court  must  conform.  Baker 
V.  Blood,  128  Mass.  543.  The  jurisdic- 
tion of  probate  tribunals  over  claims 
against  a  solvent  estate  is  not  usually 
exclusive,  but,  at  best,  only  concurrent 
with  that  of  the  common-law  courts,  and 
the  creditor  may  elect  to  sue  in  another 
tribunal.  Griggs'  Estate,  11  Phila. 
(Penn.)  23.  And  see  Wapple's  Appeal, 
74  Penn.  .St.  100. 

On  the  whole,  the    doctrines  which 


PART  I.] 


INTRODUCTION. 


§    14 


yet,  important  as  must  be  the  functions  of  these  probate  judges, 
public  registry  is  the  prominent  feature  of  our  county  probate 
offices,  if  not  of  probate  jurisdiction  ;  and  for  system  and  care 
in  preserving  the  public  records,  the  judge,  as  well  as  the  regis- 
ter, may  be  held  responsible  in  a  certain  ministerial  capacity.' 


§  14.  Modern  Probate  Jurisdiction  in  England;  New^  Court  of 
Probate  Act.  —  This  American  system  —  so  simple,  so  frugally 
administered,  so  well  adapted  to  its  ends,  and  withal  so  uniform 
of  application  in  setthng  estates  of  the  dead,  and  so  fully  har- 
monizing with  the  arrangement  of  the  temporal  courts  —  appears 
to  have  gradually  impressed  Britons  as  superior  to  their  own. 
In  many  branches  of  jurisprudence,  doubtless,  American  legis- 


relate  to  probate  jurisdiction  should  be 
studied  in  connection  with  the  general 
subject  of  chancery  powers.  The  Eng- 
lish decisions  afford  much  light  on  this 
topic ;  yet  it  should  be  borne  in  mind 
that  probate  jurisdiction  in  the  United 
States  differs  greatly  from  the  English 
ecclesiastical  jurisdiction,  as  understood 
prior  to  the  independence  of  the  Amer- 
ican colonies.  Our  American  probate 
system  is  more  comprehensive  than  that 
of  England,  and  rests  more  firmly  upon 
separate  state  enactments  and  the  judi- 
cial exposition  of  those  state  enact- 
ments. Probate  law  and  practice  as 
concerning  the  United  States,  must,  in 
the  main,  be  studied  with  reference  to 
the  judicial  system  of  each  particular 
State.  See  the  authorities  cited  at  great 
length,  under  such  an  arrangement,  in 
U.  S.  Dig.  1st  Series,  Courts,  II.,  and 
Annual  Digests  (1870  ei  seq.),  under 
the  same  general  heading.  Some  of  the 
more  important  points  of  practice  will 
be  incidentally  noticed  under  appro- 
priate heads  in  the  course  of  the  present 
treatise.  See  also  such  practical  works 
upon  State  probate  law  as  those  of 
Smith  (Mass.),  Amasa  Redfield  (New 
York),  and  Gaiy  (Wisconsin,  etc.). 

'  See  e.g.  Thompson  v.  Holt,  52  Ala. 
491.     The  register,  in  some  States,  ap- 


pears capable  of  exercising  some  judi- 
cial functions  of  a  routine  character  by 
way  of  deputy.  Wickersham's  Appeal, 
75  Penn.  St.  334;  Thornton  v.  Moore, 
61  Ala.  347.  But,  in  general,  the  reg- 
ister's duties  are  ministerial  or  corre- 
sponding to  those  of  a  clerk  of  courts 
and  custodian  of  records.  He  may  be 
elected  by  the  people,  notwithstanding 
the  power  to  appoint  judicial  officers  is 
vested  by  the  State  constitution  in  the 
governor.  Opinion  of  Justices,  117 
Mass.  603.  And  it  is  within  the  con- 
stitutional authority  of  the  legislature, 
by  general  law,  to  change  the  term  of 
office,  or  to  abolish  the  office  itself,  and 
transfer  the  powers  and  duties  to  an- 
other; as  has  sometimes  been  done, 
where,  for  instance,  the  office  of  register 
of  "probate  and  insolvency  "  was  sul> 
stituted  for  that  of  "  register  of  pro- 
bate."    lb. 

A  judge  of  probate  should  not  grant 
administration  in  an  estate  in  which  he 
is  personally  interested ;  and  local  stat- 
utes generally  provide  for  all  contin- 
gencies by  allowing  the  judges  of  dif- 
ferent counties  to  hold  court  for  one 
another.  Sigourney  v.  Sibley,  22  Pick. 
507.  Or  by  removal  from  the  county 
to  another  court.  Burks  v.  Bennett,  55 
Tex.  237. 


§    14  EXECUTORS    AND    ADMINISTRATORS.  [PART  I. 

lators  draw  their  inspiration  from  abroad  ;  but,  for  probate  as 
well  as  matrimonial  law,  the  breeze  blows  fresher  from  their 
own  side  of  the  Atlantic,  and  the  United  States  may  be  regarded 
as  preceptor  to  the  mother  country.  By  the  English  Statute 
of  20  &  21  Vict.  c.  yj  (a.d.  1857),  that  jurisdiction  which  eccle- 
siastical courts  formerly  exercised  in  Great  Britain  has  been 
transferred  to  a  new  tribunal  known  as  the  Court  of  Probate, 
and  the  authority  of  the  ordinary,  as  well  as  of  the  old  manorial 
and  other  peculiar  courts,  is  entirely  superseded.  All  causes 
relating  to  the  grant  and  revocation  of  probate  of  wills  and  of 
administration  within  English  jurisdiction  are,  by  that  enactment, 
\-ested  in  the  new  tribunal  —  a  temporal  court  whose  grants  and 
orders  have  full  effect  throughout  all  England,  and  in  relation 
to  the  personal  estate  in  all  parts  of  England  of  deceased  per- 
sons ;  and  this  court  of  probate  is  declared  a  court  of  record. 
All  the  powers  formerly  exercised  by  that  supreme  ecclesiastical 
forum,  the  prerogative  court  of  the  archbishop  of  Canterbury, 
have  been  thus  transferred  ;  the  new  probate  court  has  the  power 
of  citation,  the  power  to  examine  witnesses  and  require  their 
attendance  as  well  as  the  production  of  deeds  and  documents  ; 
the  power  to  enforce  its  own  orders  and  to  issue  execution  for 
costs  ;  the  power  to  order  any  instrument  produced  which  pur- 
ports to  be  testamentary  ;  and  the  power  to  make  rules  and 
orders  for  regulating  procedure.  Its  general  practice  is  in  ac- 
cordance with  the  former  practice  of  the  prerogative  court ;  the 
rules  of  evidence  in  common-law  courts  being  applied  in  the  trial 
of  all  questions  of  fact.' 

Appeal  lies  from  this  court  of  j)robate  to  the  House  of  Lords  : 
the  privy  council  having  formerly  exercised  the  final  jurisdiction 
in  causes  testamentary.  Courts  of  equity  are  courts,  as  l:)efore, 
for  the  construction  of  wills ;  and  so  formerly,  in  concurrence, 
were  the  ecclesiastical  courts  ;  but  the  new  court  of  probate  is 
expressly  forbidden  to  exercise  such  jurisdiction  ;  and  no  suits 
for  legacies,  nor  for  distribution  of  a  residue,  can  be  brought 
therein.  Bonds,  inventories,  and  accounts  are  rendered  to  the 
court  of  probate  :  the  i:)lace  for  depositing  wills  is  under  its  con- 

'  Act  20  &  .11   Via.  c.  77  ;  Wms.  Exrs.  7th  Eng.  ed.  290,  294,  312,  323,  344. 

20 


PART  I.]  INTRODUCTION.  §    I  5 

trol ;  and  calendars  are  kept  in  its  principal  registry,  district 
registries  being  established  according  to  its  direction.  Applica- 
tion for  probate  or  administration  may  be  made  to  the  court  of 
probate  ;  but  in  small  estates  the  judge  of  the  county  where  the 
deceased  had  his  last  "  fixed  place  of  abode  "  shall  have  the  con- 
tentious jurisdiction  and  authority.' 

The  main  purport  of  this  enactment  is  to  supplant  the  old 
ecclesiastical  tribunals  by  a  temporal  court  whose  law  and  pro 
cedure  shall  be  in  harmony  with  the  general  judicial  establish- 
ment of  the  realm  ;  to  perfect  a  uniform  system  of  probate 
registry  ;  and  to  encourage  the  practice  of  procuring  credentials 
of  authority  wherever  the  estate  of  a  deceased  person  has  to  be 
settled,  at  the  same  time  increasing  the  facilities  for  so  doing. 
The  English  probate  practice,  though  simplified  certainly  by 
this  later  legislation,  is  still,  however,  more  costly  and  burden- 
some apparently  than  that  of  most  American  States,  and  is  less 
identified  with  county  tribunals  and  the  local  neighborhood  of 
the  decedent.^ 

§  15.  Conflict  of  Laws  in  Wills  and  Administration ;  General 
Rule  of  Comity  ;  Authority  of  Representative  is  Local ;  Rule  as  to 
Foreign  Creditors. —  The  conflicting  laws  of  various  countries 
give  rise  to  perplexing  inquiries  incidental  to  the  settlement  of 
an  estate  which  must  be  solved  on  the  principles  of  comity. 
As  respects  the  estate  of  any  deceased  person,  the  general  rule 
is  that  the  law  of  the  place  of  his  last  domicile,  rather  than  the 
law  of  the  place  of  his  birth,  or  of  the  place  where  he  happened 
to  die,  or  of  the  place  where  the  personal  property  was  situated, 

"  Act  20  &  21  Vict.  c.  77,  with  amend-  the  costs  of  both  parties  should  be  paid 

ment,  21  &  22  Vict.  c.  98;  Wms.  Exrs.  out  of  the  estate,  it  was  found  that  the 

298,  301,  315,  320,  573.  personal  estate  would  not  suffice  to  pay 

"^  In   a   recent   instance,   appeal    was  the  costs.     A  chancery  suit  was   then 

taken  from  the  Court  of  Probate  to  the  instituted  to   determine  whether  costs 

House  of  Lords  on  an  issue  as  to  the  could  be  enforced  out  of  the  real  estate; 

person   to   whom    probate    should   be  but  it  was  held  that  they  could  not,  the 

granted.     The   House  of    Lords   were  Court  of   Probate    having   jurisdiction 

evenly  divided,  so  that  the  order  of  the  only  over  the  personalty.     Charter  r'. 

Court  of  Probate  remained  unreversed.  Charter,   L.    R.   7    H.    L.   364  ;    ib.    24 

The  case  having  been  remitted  to  the  W.  R.  874. 
Court  of  Probate  with  directions  that 

21 


§    15  F.XECUTORS    AND    ADMINISTRATORS.  [PART  I, 

shall  prevail.  And,  if  all  circumstances  favor,  the  sole,  or  at 
least  the  principal  grant  of  letters  ought  to  be  taken  out  and  the 
will  proved,  in  the  country,  the  State,  and  indeed  the  very  county, 
where  one  was  a  domiciled  inhabitant  at  the  time  of  his  death. 
But  local  sovereign  law  does  not  always  give  way  to  the  law  of 
the  last  domicile,  where  assets  belonging  to  the  deceased  per- 
son's estate  lie  within  the  local  sovereign  jurisdiction,  and  strict 
compliance  with  the  foreign  law  would  prove  detrimental  to  the 
local  interests. 

( I )  It  is  a  principle  of  English  and  American  law  that  letters 
testamentary  or  of  administration  granted  in  the  place  of  last 
domicile  of  the  deceased  confer  no  authority  as  such  outside  the 
jurisdiction  of  the  State  or  country  in  which  they  were  origi- 
nally issued ;  and  if  the  representative  is  permitted  to  collect 
effects,  or  to  sue  for  assets,  in  an  external  jurisdiction,  it  is  be- 
cause of  a  favor  extended  to  him,  and  not  his  right ;  the  usual 
requirement  being  rather,  as  local  laws  frequently  provide,  that 
probate  of  the  will  (if  there  be  one)  shall  be  made  in  the  juris- 
diction thus  invaded  ;  and  often  that  there  shall  be  a  local  quali- 
fication of  some  sort  and  local  letters  taken  out,  if  not  by  the 
principal  executor  or  administrator,  by  some  local  person  as  his 
attorney  or  substitute.  The  due  probate  of  a  will  in  the  origi- 
nal jurisdiction  is,  to  be  sure,  often  respected  by  the  law  of 
other  States  or  countries,  as  in  permitting  evidence  by  exempli- 
fied copy  from  the  original  probate  record  to  suffice  for  proof.' 
But  as  respects  mere  administration  on  an  assumed  intestacy, 
the  fact  of  local  assets,  or  of  some  local  necessity  for  conferring 
a  local  probate  appointment,  may  serve  for  invoking  the  local 
jurisdiction.  Ancillary  probate  authority  will  be  granted  in  one 
State  or  country  under  such  circumstances,  because  principal 
letters  testamentary  or  of  administration  have  been  granted 
elsewhere ;  and  yet  the  domestic  court  docs  not  necessarily  de- 
fer its  own  appointment  until  the  will  of  a  non-resident  testator 
has  been  proved  in  the  State  or  country  of  his  last  domicile, 
nor,  in  case  of  the  decedent's  supposed  intestacy,  wait  until  ad- 

'  Price  V.  Dewhurst,  4  M.  &  Cr.  76,     Wood  v.  Matthews,  73   Mo.  477  ;   She- 
80;  Campbell  v.  Sheldon,   13  Pick.  8;     gogg  z/.  Perkins,  34  Ark.  117. 
Campbell   v.   Wallace,    10   Gray,  162; 

22 


PART  I.]  INTRODUCTION.  §    I  5 

ministration  has  been  granted  in  such  State  or  country  ;  but 
the  practical  convenience  of  creditors  and  citizens  in  its  own 
jurisdiction  will  be  steadily  regarded,  provided  there  be  assets 
at  hand  whose  owner  has  deceased.' 

In  short,  the  title  of  the  executor  or  administrator,  derived  from 
the  grant  of  administration  in  the  country  of  the  domicile  of  the 
deceased,  does  not  extend,  as  a  matter  of  right,  beyond  the  ter- 
ritory of  the  government  which  grants  it  and  the  personal  or 
movable  property  therein ;  as  to  movables  or  personal  property 
elsewhere,  the  title,  if  acknowledged,  is  acknowledged  only  from 
comity ;  and  comity  yields  to  the  local  obligation  of  protecting 
domestic  rights  as  against  foreign.^ 

(2)  With  regard  to  the  administration  of  foreign  assets,  the 
prevailing  American  doctrine  favors  the  law  of  the  State  or 
country  where  the  assets  are  situated,  over  that  of  the  last  dom- 
icile, or  at  least  equally  to  it,  so  far  as  regards  creditors  of  the 
estate ;  it  being  a  rule  of  public  convenience,  that  property  of 
the  deceased  within  reach  of  the  domestic  process  shall  be 
applied  to  the  liquidation  of  debts  in  consonance  with  domestic 
policy. 3  For,  it  should  be  observed,  the  application  of  one's 
property  to  the  payment  of  debts  is  fairly  regulated  in  every 
State  or  country  according  to  a  public  sense  of  justice,  which 
overrides  all  external   regulations  or  legal  preferences  ;  where 

'  Wms.  Exrs.  362,  430 ;  Tyler  v.  Bell,  them  into  the  State  where  action  is 
2  M.  &  Cr.  89  ;  2  Kent  Com.  434.  And  brought,  the  prohibition  of  the  common 
see  Bowdoin  v.  Holland,  10  Cush.  17;  law  prevails.  See  Webb,  Matter  of,  18 
Doolittle  V.  Lewis,  7  Johns.  Ch.  45;  N.  Y.  Supr.  124.  On  a  claim  assigned 
Willard  v.  Hammond,  21  N.  H.  385 ;  to  the  plaintiff  by  a  foreign  executor, 
Sanders  v.  Barrett,  8  Ired.  Eq.  246 ;  an  action  is  allowable  in  a  State  where 
Story  Confl.  Laws,  §§  512,  513,  and  there  has  been  no  probate  or  admin- 
numerous  cases  cited.  istration.       Campbell     v.     Brown,     64 

^  Story  Confl.  Laws,  §  512  ;  Moore  v.  Iowa,  425. 
Fields,    42     Penn.    St.    472.      Foreign         ^Harrison  v.   Sterry,  5   Cranch,  299; 

executors    and    administrators    cannot  Smith  z^.  Union  Bank,  5  Pet.  523  ;  Hol- 

merely  by  virtue  of  their  offices,  either  comb  v.  Phelps,  16  Conn.    127;    Story 

prosecute   or    defend    actions    in    the  Confl.  Laws,  §§  480,  48 1,  524.      As  to 

courts   of   other    States.     In  some  in-  the  English  doctrine  cf.  Wilson  v.  Lady 

stances  the  disability  has  been  removed  Dunsany,   18    Beav.  293;    Carron    Iron 

by  statute ;  but  where  that  is  not  the  Co.  v.   Maclaren,  4    H.    L.    Cas.    455 ; 

case,   and   the   representative   has  not  Goodall  v.  Marshall,  11  N.  H.  88. 
removed  the  assets  or  some  portion  of 

23 


§    l6  EXECUTORS    AND    ADMINISTRA'm  KS.  [fAKT   i. 

creditors'  rights  are  to  be  enforced,  there  the  law  of  the  forum 
may  well  be  invoked.  A  State  or  country,  moreover,  inclines 
to  uphold  its  own  priorities  as  to  taxes  and.  other  public  claims ; 
though,  as  among  general  claimants,  in  case  the  estate,  as  a 
whole,  proves  insufficient  to  pay  them  in  full,  comity  seeks 
apparently,  in  modern  times,  to  so  adjust  the  estate  in  different 
jurisdictions  as  to  make  a  pv  rata  settlement  of  claims  as  a 
whole,  and  not  expend  all  in  paying  claims  of  domestic  citizens 
to  the  prejudice  of  foreign  creditors.'  The  tendency  of  modern 
legislation  in  this  last  respect,  which  we  gather  from  local  stat- 
utes, is  by  no  means  selfish  ;  for  it  is  yielding  much  not  to  appro- 
priate local  assets  to  the  satisfaction  first  of  local  creditors. 

§  1 6.  Conflict  of  Laws  ;  Comity  Favors  as  to  Payment  of  Leg- 
acies and  Distribution.  —  (3)  But  when  it  comes  to  the  payment 
of  legacies  or  the  general  distribution  of  the  residue  of  one's 
personal  estate,  after  debts  and  claims  are  satisfied,  comity 
highly  respects  the  law  of  the  last  domicile  of  the  deceased.^" 
For  all  such  dispositions  of  the  surplus  being  at  the  sole  discretion 
of  a  decedent,  either  as  manifested  by  his  last  will  and  testament, 
if  he  has  left  one,  or  as  defined  under  the  will  drawn  up  for  him 
by  the  legislature  of  his  own  last  domicile,  so  to  speak,  which 
every  intestate  may  be  presumed  to  have  accepted  in  lieu 
of  other  express  testamentary  provisions  on  his  own  part,  it  is 

'  Mitchell  V.  Cox,  22  Ga.  32  ;  Nor-  of  the  deceased,  there  and  elsewhere, 
mand  v.  Grognard,  14  N.  J.  L.  425.  may  receive  each  an  equal  share  in  pro- 
Some  countries  and  States  make  various  portion  to  their  respective  debts.  Davis 
classes,  preferring  debts  on  judgments  v.  Estey,  8  Pick.  475  ;  Mass.  Gen.  Stats, 
to  simple  contract  debts  ;  others  accord  c.  loi,  §§  40,  41. 

no  such  preference  and  hence  abide  as         ^  Bruce  v.   Bruce,  6   Bro.  P.  C.  566; 

to    local   assets  by  their   own   system,  Crispin  v.   Doglioni,  3    Sw.  &   Tr.  98 ; 

though    the    deceased   were    domiciled  s.  c.    L.   R.    i    H.  L.  301  ;    Holmes  v. 

abroad.      Under  the  provisions  of  the  Remsen,    4    John.    Ch.    460 ;  Ennis   v. 

MassachxLsetts  statute    citizens   cannot  Smith,  14    How.    (U.    S.)    400 ;    Wms. 

be  put  to  the  inconvenience  of  proving  Exrs.   151 5,   and   Perkins's  Am.   note; 

their  claims  abroad  when  there  are  local  Jennison    v.    Hapgood,    10    Pick.   77; 

assets;  nor,  on  the  other  hand,  can  the  Crum   v.   Bliss,  47  Conn.   592;   Russell 

whole  estate  found  there  be  appropri-  v.  Madden,  95  111.  485  ;  Grote  v.  Pace, 

ated  to  domestic  creditors;  but  the  estate  71    Ga.  231  ;  40  N.  J.  Eq.   14;  Apple's 

found  there  is  to  be  so  far  disposed  of.  Estate,  66  Cal.  432 ;  96  N.  C.  139. 
as  far  as  practicable,  that  all  creditors 

24 


PART   T.]  INTRonrCTIDX.  S    l6 

but  just  to  give  that  express  or  implied  will  due  effect  in  every 
country  where  the  estate  of  the  deceased  may  happen  to  be  sit- 
uated. Transmission,  therefore,  to  legatees  and  distributees,  of 
a  decedent's  personal  estate,  is  governed  exclusively  by  the  law 
of  the  decedent's  actual  domicile  at  the  time  of  his  death,  no 
matter  what  was  the  country  of  his  birth  or  his  former  domicile, 
or  the  actual  situs  of  such  property  at  the  time  of  his  death." 
On  the  whole,  it  must  be  pronounced  advantageous  as  well  as 
just  for  each  independent  sovereignty  to  respect  a  decedent's 
disposition  of  his  own  surplus  of  personal  estate,  and  to  permit 
one  rule  to  regulate  its  beneficial  distribution  ;  and  no  prejudice 
to  the  rights  of  the  sovereignty  or  its  citizens  follows  the  pur- 
suance of  such  a  course.^ 

It  has  been  observed,  however,  that  the  local  law  does  not, 
in  such  instances,  give  way  to  the  law  of  the  foreign  country  ; 
but  rather  adopts,  as  part  of  its  own  law,  the  doctrine  that  dis- 
tribution of  the  surplus  of  personal  property  shall  be  according 
to  the  law  of  the  owner's  last  domicile.^  The  law  of  the  last 
domicile,  as  it  stands  at  the  time  of  an  intestate's  death,  is 
taken  by  the  local  courts ;  with  a  liberal  discretion,  however, 
as  to  the  true  interpretation  of  that  law,  and  a  disposition  to 
disregard  retrospective  changes  therein  tending  to  thwart  an 
intestate's  genuine  purpose.''  And  the  special  rights  of  a 
widow,  too,  by  way  of  allowance  and  the  like,  should  be  de- 

"  Mr.  Justice  Story  declares  that  this  Doglioni,  3   Sw.  &  Tr.  98 ;  s.  c.   L.  R. 

universal   doctrine  was  formerly  much  i  H.  L.  301.      See  Goodman's  Trusts, 

contested.     Story  Confl.  Laws,  §481.  /«  re,  L.  R.  17  Ch.  D.  266,  reversing  L. 

^Lord  Hardwicke  observes  in  Thorne  R.   14  Ch.  D.  619.      But  confiscation 

V.  Watkins,  2  Ves.  Sen.  37,  that  if  the  and  other  laws  passed  by  the  govern- 

rule  of  distribution  were  other\vise,  it  ment  of  last  domicile  after  the  death  of 

would  destroy  the  credit  of  the  public  the  person  cannot  on  any  just  principle 

funds  ;  for  no  foreigner  would  put  into  of  comity  be  respected  in  other  jurisdic- 

them  if  the  property  was  to  be  distrib-  tions ;  the  law  at  the  time  of  death  fur- 

uted  differently  from  the  laws  of   his  nishing   the   true  criterion.      Lynch  7'. 

own  country.  Paraguay,   L.  R.  2  P.  &  D.  268. 

The  rule  of  the  text  apphes  as  to  the  ^  Doc   v.    Vardill,    5    B.    &    C.   452  ; 

ascertainment  of  the  person;  and  laws  Wms.  Exrs.  1516;   Lynch  v.  Paraguay, 

of  local  wAw  as  to  primogeniture   yield,  L.  R.  2  P.  &  D.   268;   Wright   v.    Phil- 

where  personal  property  is  concerned,  lips,  56  Ala.  69;  76  Ala.  441. 

to  the  law  of  the  place  of  last  domicile.  *  lb. 
Story  Confl.   Laws,   §  481  ;    Crispin  v. 

25 


§    17  EXECUTORS    AND    ADMINISTRATORS.  [PAKT   1. 

termined  by  the  law  in  force  at  the  death  of  her  husband  in  the 
place  of  his  last  domicile.' 

§  1 7.  Conflict  of  Laws  ;  Rule  as  to  Execution  and  Validity  of 
"Will.  —  (4)  Furthermore,  and  from  similar  considerations,  the 
law  of  the  place  of  last  domicile  regulates  as  to  the  execution 
and  validity  of  wills  of  personal  property.  Whenever  local  as- 
sets may  be  found,  the  will  of  a  deceased  person,  in  order  to 
operate  thereupon,  must  have  conformed  to  the  law  in  force 
where  he  had  his  last  domicile,  and  must  be  there  entitled  to 
probate."^  And  the  law  of  one's  last  domicile  not  only  decides 
what  constitutes  one's  last  will,  but  whether  one  died  testate  in 
point  of  fact  or  intestate ;  ^  so  that  execution,  with  all  the  for- 
malities required  in  the  country  where  the  personalty  is  situated, 
cannot  of  itself  give  one's  instrument  the  force  of  a  valid  testa- 
mentary disposition.  All  questions  as  to  the  forms  and  solem- 
nities attending  a  due  execution  are  therefore  to  be  referred  to 
the  place  of  last  domicile.^ 

As  a  corollary  of  our  main  proposition,  it  may  be  stated  that, 
if  one  makes  a  will,  valid  by  the  law  of  the  place  where  he  is 
domiciled,  and  afterwards  changes  his  domicile  to  a  place  by 
whose  laws  such  a  will  is  invalid,  and  there  dies,  the  will  can- 
not operate.5     Nevertheless,  should  he  move  back  from  the  lat- 

'  Leib  V.  Wilson,  51  Ind.  550;  Mitch-  laws  are  to  be  proved  as  facts,  and  the 

ell  V.  Word,  64  Ga.  208;  Taylor  v.  Pet-  question  of  their  existence  and  inter- 

tus,  52  Ala.  287.  pretation  devolves  in  a  measure  upon 

*Craigie  v.  Lewin,  3  Curt.  435  ;  Hare  the  local  tribunal,  according  to  the  cir- 

V.    Nasmyth,     2    Add.    25 ;    Crispin    v.  cumstances  of  the  case  and  the  proof 

Doglioni,  3  Sw.  &   Tr.  96 ;  s.  c.  L.  R.  accessible.     lb.;  Wms.  Exrs.   372,  and 

I  H.   L.  301;  Grattan  v.   Appleton,  3  Perkins's  note;  Story  Eq.  Jur.  §   1068. 

Story,    755;  4    Kent    Com.    513,    514;  '' Schultz  w.  Dambmann,  3  Bradf.  Sur. 

Harrison  t/.  Nixon,  9  Pet.  483  ;  Crofton  379;  Story   Confl.  Laws,   §  465.     The 

V.  Ilsley,  4  Greenl.    139;  Story  Confl.  authority  of  the  executor  named  in  the 

Laws,  §§  465-468 ;  Stanley  z/.  Bernes,  3  will  must  be  determined  according   to 

Hagg.  374.  the  law  of  the  testator's  last  domicile. 

^Moultrie  v.    Hunt,   23   N.    Y.   394.  Laneuville   v.   Anderson,  2   Sw.  &  Tr. 

But    as   to  regarding  foreign    rules  of  24;  Oliphant,   in    7e,    30    L.    J.   N.   S. 

evidence  in  establishing   a   will,    some  Prob.  82. 

qualification  of  the  rule  may  be  need-  '  Dupuy  v.    Wurtz,    53   N.    Y.    556 ; 

ful.      See   Story  Confl.   Laws,  §§   260,  Story  Confl.  Laws,  §  473,  citing  J.  Voet 

634,   636,    and    cases    cited.       Foreign  and  other  continental  authorities. 

26 


PART  I.]  INTRODUCTION.  §    1 9 

ter  domicile  to  the  former  before  his  death,  with  his  resumption 
of  the  domicile  where  the  will  was  made,  the  will  itself,  as  it  is 
considered,  revives  also.'  And  it  would  appear  that,  apart  from 
statute,  the  validity  and  effect  of  a  will  of  personal  property 
must  be  determined  according  to  the  law  in  force  at  the  time 
the  will  becomes  operative  :  that  is  to  say,  when  the  person 
dies  who  made  that  will.'' 

§  1 8.  Conflict  of  La-ws  ;  Rule  as  to  Accountability  of  Executor 
or  Administrator.  —  (5)  In  general,  the  laws  of  the  State  or 
country  in  which  an  appointment,  principal  or  ancillary,  is  made, 
govern  as  to  the  accountability  of  the  executor  or  administrator 
for  assets  therein  received,  and  the  faithful  or  unfaithful  dis- 
charge of  his  duties.3 

§  1 9.  Conflict  of  Laws ;  Personal  and  Real  Estate  contrasted  ; 
Situs  prevails  as  to  Real.  —  (6)  Administration  and  wills,  how- 
ever, have  reference  thus  to  movables  or  personal  property. 
As  concerns  the  transmission  of  real  estate,  and  rights  and 
formalities  of  title  thereto,  the  law  of  local  situation  in  general 
prevails  instead.  Hence,  the  rule  that  a  will  of  real  estate  or 
of  fixed  and  immovable  property  must  be  governed  by  the  law 
of  local  situation,  and  can  only  operate  so  far  as  it  conforms  to 
that   law."*     This  local  law   applies  as  to   formal  characteristics 

*  Story  Confl.  Laws,  §  473.  Mon.  582.     As  to  the  effect  of  a  for- 

^  Trotter  v.   Trotter,  4   Bligh    N.   S.  eign  appointment  ?,ee  post,  Part  II. 

4502 ;  Laneuville  v.  Anderson,  3  Sw.  &  ''  Story  Confl.  Laws,  §  474  ;  Bovey  v. 

Tr.  24;  Harrison  v.  Nixon,  9  Pet.  483.;  Smith,  i  Vern.  85;  4  Kent  Com.  513; 

De  Peyster?/.  Clendining,  9  Paige,  295;  Kerr  v.  Moon,  9  Wheat.  565  ;  Potter  7/. 

Story  Confl.  Laws,  §  479 ;  Lawrence  v.  Titcomb,    22    Me.    303 ;    Robertson   v. 

I-lebbard,  1    Bradf.   Sur.    252;  Cushing  Pickrell,  109  U.  S.  608;  38  N.  J.   Eq. 

V.  Aylwin,  12  Met.  169.     But  see  Kurtz  516;  Crolly  v.  Clark,    20  Fla.  849.     In 

V.  Saylor,  20  Penn.  St.  205,  that  capac-  the  title  of  a  mortgage  upon   land  the 

ity  to  make  a  will  is  determined  by  the  local  administrator  has  been  preferred 

law  as  it    existed   when   the   will    was  to  one  appointed  in  the   State  where 

made.     And    see    post   as    to    statute  the     mortgagee     died.      Reynolds     v. 

changes,  §  20.  McMullen,  55  Mich.  568.     Cf.  36  Kan. 

3  Partington  z'.  Attorney  General,    L.  271;  Clark  z/.   Blackington,   no  Mass. 

R.  8  H.  L.  100,  119;  Kennedy  v.  Ken-  369.     The  local  court  claims   the  right 

nedy,    8    Ala.  391  ;  Fay   v.    Plaven,    3  to   construe    a    devise   of    local   lands. 

Met.    109;  Lawrence  v.  Elmendorf,    5  McCartney  z/.  Osburn,  1 18  111.  403. 
Barb.  73;  Marion  v.  Titsworth,   18   B. 

27 


§   20  EXECUTORS    AND    ADMINISTRATORS.  [PART  1. 

of  a  will,  mode  of  execution,  capacity  or  incapacity  and  formal 
revocation.'  And,  on  the  other  hand,  if  there  be  no  will  thus 
operative  to  transmit  the  title,  the  descent  of  such  real  estate 
or  immovable  property  must  be  in  accordance  with  the  law  of 
that  local  jurisdiction.  The  court  of  one  State  or  sovereignty 
has  no  inherent  power  to  order  lands  to  be  sold  in  another 
State  or  sovereignty  or  to  control  the  title  thereto.^ 

The  law  of  local  situation  may  determine  the  character  of 
property  in  this  connection,  as  being  real  or  personal. ^  Never- 
theless, comity  respects  the  law  of  testamentary  domicile  so  far 
as  to  enable  property  to  go  in  the  one  character  or  the  other, 
as  the  testator  obviously  intended.''  Very  embarrassing  ques- 
tions may  arise  where  real  and  personal  estate  are  so  combined 
in  the  same  will  that  the  laws  of  different  sovereign  jurisdic- 
tions must  be  applied.^ 

§  20.  Conflict  of  Laws ;  General  Rules  varied  by  Treaty, 
Statute,  etc.  —  (7)  The  general  rules  of  comity  which  we  have 
set  out  may  be  found  varied  by  treaty  stipulations  or  by  pro- 
visions otherwise  so  incorporated  with  the  law  of  the  place  of 
last  domicile  as  to  introduce  a  different  principle  for  the  case 
in  hand  from  those  above  announced.  The  law  of  last  domicile 
for  instance  is  to  be  construed  with  all  its  appropriate  and  just 
qualifications  consistent  with  the  equal  dignity  of  nations. 
Thus,  if  an  English-born  subject  dies  domiciled  in  Belgium,  and 
the  Belgian  law  has  prescribed  a  rule  of  succession  for  such 
persons,  differing  from  that  of  natural-born  subjects  of  Belgium, 
English  courts  will  give  that  exception  effect  if  beneficial,  even 
though  its  consequence  be  to  establish  a  testamentary  disposi- 
tion, valid  in  form  according  to  the  laws  of  England,  but  invalid 
according  to  the  general  law  of  Belgium  ;  ^  and  on  the  other 

'  Evansville  Ice  Co.  I/.  Windsor,   148  Brodie  w.  Barry,   2   Ves.  &  B.    130, /^r 

Ind.  682.  Sir  Wm.  Grant. 

*Boyce  v.  Grundy,  9  Pet.  275.  ^  Collier  v.  Rivaz,  2  Curt.  855  ;  Wms. 

'Story  Confl.    Laws,    §  447;  Chap-  Exrs.  368.    And  see  Maltass?/.  Maltass, 

man  v.  Robertson,  6  Paige,  630.  3  Curt.  231.     The  foreign  rule  in  these 

*Enohin  7f.  Wylie,  10    H.  L.  Cas.  1  ;  instances  prescribed  in   effect  for  Eng- 

Jerningham  r.  Herbert,  4  Russ.   388.  lish-born  subjects  domiciled   there  that 

'Story   Confl.    Laws,    §§    485-489; 

28 


PART  I.]  INTRODUCTION.  §   20 

hand  a  sovereignty  may  correct,  where  opportunity  offers,  the 
injustice  attempted  by  another  sovereignty  towards  its  own 
subjects. 

While,  again,  the  general  rule  of  comity  refers,  as  we  have 
seen,  the  validity  of  a  last  will  of  personal  property  and  ques- 
tions of  due  execution,  to  the  place  of  last  domicile,  various 
modern  statutes  show  more  indulgence  to  the  testator,  who 
otherwise  might  inadvertently  by  changing  his  domicile  after 
once  making  a  perfectly  valid  will  render  that  will  inoperative 
and  die  literally  intestate  in  consequence."  Thus,  the  P2nglish 
statute  24  &  25  Vict.  c.  114,  provides  that  wills  made  by  Brit- 
ish subjects  out  of  the  kingdom  shall  be  admitted  to  probate,  if 
made  according  to  the  law  of  the  place  where  made,  or  where 
the  testator  was  domiciled  or  had  his  domicile  of  origin.^  So 
in  Massachusetts  and  some  other  American  States,  it  is  now 
provided  that  a  will  made  out  of  the  State,  which  is  valid  ac- 
cording to  the  laws  of  the  State  or  the  country  in  which  it  is 
made,  may  be  proved  and  allowed  with  the  same  effect  as  if 
executed  according  to  the  law  of  the  State.^ 

In  further  extension  of  the  general  right  of  testamentary  dis- 
position, the  Enghsh  statute,  24  &  25  Vict.  c.  114,  enacts  that 
wills  made  by  British  subjects  within  the  United  Kingdom  (what- 
ever the  domicile  of  such  person  at  the  time  of  such  execution 
or  at  the  date  of  decease)  shall,  as  regards  personal  estate,  be 
considered  as  well  executed  and  admissible  to  probate,  if  exe- 
cuted according  to  the  forms  in  force  for  the  time  being  at  the 
place  of  execution ;  and  that  no  will  or  other  testamentary  dis- 
position shall  be  held  to  have  become  invalidated  or  its  construc- 
tion altered  by  reason  of  any  subsequent  change  of  the  testator's 

the  succession  to  personal  estate  should  this  statute.     Bayley  v.  Bailey,  5  Cash, 

be  governed  by  English  law.  245.     And  so   does  a  nuncupative  will, 

'  See  Dupuy  v.  Wurtz,  53  N.  Y.  556;  valid  where  executed,  though  invalid  if 

Story  Confl.  Laws,  §    473;  supra,  §  17.  executed  in   Massachusetts.     Slocomb 

^  This    statute     operates    upon    the  z/.  Slocomb,  13   Allen,  38.     And  see  in 

wills   of    British    subjects    dying  after  Vermont  as  to  a  will  of  personalty  duly 

August  6,  1861.     Wms.  Exrs.  374.  probated  where  one  died  and  left  assets, 

5  Mass.  Pub.  Stats,  c.    127,   §   5.     A  though    the    domicile    was    Vermont, 

will    thus    executed,    which   revokes   a  Ives  v.  Salisbury,  56  Vt.  565. 
former  will,  comes  within   protection  of 

29 


§   21  EXECUTORS    AND    ADMINISTRATORS.  [PART  I, 

domicile.'  So,  in  some  parts  of  the  United  States,  it  is  provided 
by  local  statute  that  a  will  made  and  executed  in  conformity  with 
the  law  existing  at  the  time  of  its  execution  shall  be  effectual." 
The  legislation  of  certain  States,  moreover,  in  derogation  of 
general  rules,  expressly  or  by  apparent  intendment,  permits  a 
will  which  has  been  duly  executed  in  another  State  or  country 
to  operate,  if  effectual  at  all,  upon  real  estate  as  well  as  personal, 
within  the  jurisdiction  of  local  situs. '^ 

§21.   Last  Domicile :  what  this  is ;  Residence,  Inhabitancy. — 

Domicile  is  a  word  not  easily  defined  with  precision.  It  would 
appear  that  the  Roman  and  civil  jurisprudence  laid  stress  upon 
one's  place  of  business  as  well  as  his  domestic  residence ;  but 
the  common  law  has  fixed  the  domicile  mainly  from  regard  to 
one's  home  and  the  place  where  he  exercises  political  rights. 
Domicile  may  be  viewed  as  national  or  domestic :  the  one  hav- 
ing reference  to  the  person's  country  or  sovereignty ;  the  other 
to  a  political  subdivision  thereof,  such  as  the  county.  It  is  the 
latter  which  determines  the  taking  of  jurisdiction  as  between 
probate  county  courts  ;  but  the  former,  when  international  rules 
are  under  discussion.'*  The  bias  of  the  courts  is  found  to  differ 
in  these  two  classes  of  cases  ;  for,  in  the  latter  class,  the  domes- 
tic forum  of  last  resort  sits  as  umpire,  while  in  the  other  there 
is  no  umpire,  and  nothing  is  yielded  except  it  be  in  the  spirit  of 
comity.  Moreover,  a  change  of  domicile  in  the  one  instance 
involves  conformity  to  a  new  and  independent  system  of  laws, 
while  in  the  former  it  does  not.  In  the  United  States,  the  law 
of  domicile  develops  still  greater  peq3lexities ;  for  there  is  the 
national  domicile,  which,  however,  is  little  concerned  with  the 
estates  of  deceased  persons  ;  the  state  domicile,  which,  for  most 
practical  purposes,  is  sovereign  in  this  connection  ;  and  the  do- 
mestic or  county  domicile. 

Domicile  may  be  regarded,  in  our  common-law  sense,  as  the 
place  where  one  has  his  true,  fixed,  and  permanent  home  and 

'Act  24  &  25  Vict.  c.  114,  §§2,  3;         3  gee  Mass.  Pub.  Stats,  c.  92,  §§  4-15; 
Wms.  Exrs.  374;  Reid,  in  re,  L.  R.  i     Shannon  v.  Shannon,  iii  Mass.  331. 
P.  &  D.  74.  ■♦  2    Kent     Com.    449 ;  Story    Confl. 

^  Mass.  Pub.  Stats,  c.  127,  §  4.  Laws,  §§  39  et  seq.,  42. 

30 


PART  I.]  INTRODUCTION.  §   21 

principal  establishment,  and  to  which,  whenever  he  is  absent,  he 
has  the  intention  of  returning.'  And  one's  last  domicile  —  the 
prime  fact  upon  which  turn  those  legal  issues  involved  in  the 
administration  and  settlement  of  his  estate  —  is  taken  to  be  his 
fixed  and  permanent  home  at  the  time  of  his  decease.  Every 
one  has  a  domicile  ;  and  the  elements  which  establish  that  domi- 
cile are  more  easily  conceived  by  the  common  mind  than  reduced 
to  a  close  legal  analysis.  "  No  exact  definition  can  be  given  of 
domicile,"  observes  Shaw,  C.  J.;  "it  depends  upon  no  one 
fact  or  combination  of  circumstances,  but,  from  the  whole  taken 
together,  it  must  be  determined  in  each  particular  case."^  Dom- 
icile is  impressed  upon  the  new-born  child  by  birth,  and  upon 
the  wife  by  her  marriage  ;  the  domicile  of  the  child  follows  that 
of  its  parents,  and  the  domicile  of  the  wife  follows  that  of  her 
husband.  Any  person  siii  jmis,  however,  may  make  a  bona 
fide  change  of  domicile  at  any  time.  Nevertheless,  one's  origi- 
nal domicile  continues  until  another  is  acquired  with  a  genuine 
full  and  free  intention  of  making  it  one's  permanent  home.^ 

Legal  residence  or  inhabitancy  is  often  used  in  our  local  leg- 
islation as  though  synonymous  with  domicile ;  but  these  terms 
are  not,  strictly  speaking,  convertible.  One  may  unquestion- 
ably be  absent  from  his  domicile ;  and  he  may  reside  or  inhabit 
elsewhere  for  sundry  reasons  of  health,  comfort,  business,  recre- 
ation, temporary  convenience,  and  the  like,  without  abandoning 
his  former  domicile  ;  for  the  law,  especially  in  considering  the 
national  or  sovereign  domicile,  favors  the  presumption  of  an  in- 
tended continuance  of  the  same  domicile,  and,  even  if  the  domi- 
cile has  changed,  treats  it  as  revived  on  an  intention  to  return. 
But  a  residence  or  inhabitancy,  originally  temporary  and  in- 
tended for  a  limited  period,  may  afterwards  become  general  and 
unlimited  in  its  character.  In  all  such  connections  the  inten- 
tion of  the  person  must  be  studied  throughout  in  the  light  of 
consecutive  events.  Such  intention  is  manifested  from  conduct 
and  circumstances,  and  not  from  words  alone ;  intention  may 
change  ;  and  when  the  two  things  concur,  the  fact  of  a  changed 

'  Bouv.  Diet.  "  Domicile."  Oilman,  52  Me.  165  ;  Story  Confl.  Laws, 

^  Thorndike  z/.  Boston,  i  Met.  245.         §45;  Wms.  Exrs.  1517,  and  Perkins's 
^  Bouv.  Diet.  "  Domieile  "  ;  Oilman  v.     note. 

31 


§    22  EXECUTORS    AND    ADMINISTRATORS,  [PART   I. 

residence,  and  the  intention  of  remaining  there,  or  at  least  of 
never  returning  to  the  former  domicile,  the  domicile  is  legally 
changed.  This  change  must,  however,  have  occurred  from  one's 
choice  and  voluntarily." 

Domicile  of  origin  is  the  first  and  fundamental  domicile ; 
though  perhaps  as  against  the  domicile  of  choice,  more  stren- 
uously insisted  upon  in  English  than  in  American  practice,  and 
where  the  conflict  is  international  than  where  it  is  interstate. 
One  may  change  his  domicile  of  origin  by  choosing  and  fixing 
his  domicile  elsewhere,  with  the  intention  of  there  continuing 
and  never  returning.  But  while  American  cases  appear  to  favor 
a  change  of  domicile  according  to  one's  choice,  as  long  as  he 
lives,  if  it  be  merely  from  State  to  State,  or  from  county  to 
county,  the  English  authorities  appear  to  keep  the  domicile  of 
origin  strongly  in  view  for  doubtful  emergencies,  and  to  hold 
that  the  abandonment  of  an  acquired  domicile  ipso  facto  restores 
the  domicile  of  origin.  The  application  of  such  a  rule,  however, 
appears  chiefly  confined  to  cases  of  natural-born  Englishmen, 
breaking  up  establishments  in  a  foreign  land.^ 

§  22.  Last  Domicile;  applied  to  the  Subject  of  Administration. 
—  Were  the  question  of  one's  domicile  raised  only  while  he  was 
living,  it  would  be  comparatively  easy  for  his  intention  to  be 
established  ;  and  in  portions  of  the  United  States,  where  a  party 
in  interest  is  allowed  to  give  his  own  testimony,  one's  simple 
statement  of  his  purpose,  if  not  inconsistent  with  the  proven 
facts,  will  often  remove  all  doubt  on  such  an  issue  ;  as  \Vhere, 

'  Bouv.  Diet.  "Domicile";  Udny  7^.  from  the  fact  of  a  man  fixing  voluntarily 

Udny,  L.    R.    i    H.  L.  Sc.  458;  Story  his  sole  or  chief  residence  in  a  particu- 

Confl.  Laws,  §  45 ;  Wilbraham  v.  Lud-  lar  place,  with  an  intention  of  continu- 

low,  99  Mass.  587  ;  Krone  v.  Cooper,  ing  to  reside  there  "for  an  unlimited 

43  Ark.  547 ;  Huldane  v.  Eckford,  L.  time."     L.  R.   i   H.  L.  Sc.  458.     And 

R.  8  Eq.  640.     See  Colt,  J.,  in  Ilallet  see  King  v.  Foxwell,  L.   R.  3  Ch.  D. 

V.  Bassett,  100  Mass.   170,  that  change  518. 

of  domicile  does  not  depend  so  much  -  See  expressions  of  Lord  Chelmsford, 
upon  the  intention  to  remain  in  the  new  Lord  Westbury,  and  others  in  Udny  -■. 
place  for  a  definite  or  indefinite  period,  Udny,  L.  R.  i  H.  L.  Sc.  App.  441; 
a.s  upon  its  being  without  an  intention  Wms.  Exrs.  1521,  note;  King  v.  Fox- 
to  return.  But  Ix)rd  Wesll^ury  speaks  well,  I,.  R.  3  Ch.  D.  51S,  per  Jessel, 
of  the  inference  which  the  law  derives  M.  R. 

32 


PART  1.]  INTRODUCTION.  §   23 

for  instance,  the  case  relates  to  taxation.  But  death  leaves  the 
question  of  last  domicile  to  be  chiefly  inferred  from  extraneous 
facts  and  circumstances  ;  each  probate  tribunal,  moreover,  which 
is  asked  to  take  jurisdiction  upon  a  dead  person's  estate,  natu- 
rally inclines  to  do  so,  and  to  construe  all  legal  doubts  in  its  own 
favor.  In  such  a  controversy,  the  presumption  that  one  domi- 
cile shall  prevail  until  another  has  been  bona  fide  and  voluntarily 
acquired  in  its  stead,  should  be  allowed  great  weight ;  and,  more 
especially,  if  to  concede  a  change  thereof  is  to  concede  that  the 
person  intentionally  expatriated  himself  and  fixed  his  residence 
in  another  country,  where  opposing  systems  of  law  must  of 
necessity  define  the  rights  of  succession.  For  it  is  a  general 
maxim  that,  though  one  may  have  two  domiciles  for  certain  pur- 
poses, he  can  have  only  one  for  the  purpose  of  succession.' 

§  23.  Last  Domicile  ;  Death  while  on  Transit,  etc.  —  The  rule 
of  last  domicile  disregards  the  iocus  of  death,  if  the  death  oc- 
curred on  transit,  or  otherwise  at  a  distance  from  one's  home. 
Thus,  in  case  one  dies  while  travelling  abroad,  the  foreign  coun- 
try should  take  no  jurisdiction,  unless  it  be  ancillary  merely  and 
founded  upon  the  possession  of  property  which  he  has  there.^ 
In  this  country  it  has  been  held  that,  where  a  citizen  removed 
from  one  State,  with  his  family,  to  settle  in  another  distant  one, 
and  died  on  the  route,  his  family  continuing  the  journey  after- 
ward, with  the  property  belonging  to  the  estate,  letters  of  ad- 
ministration might  well  be  granted  in  the  place  of  destination, 
or  where  the  family  located  ;  ^  yet,  according  to  the  more  rea- 
sonable opinion,  unless  the  person  removing  had  reached  his  in- 
tended new  domicile,  so  that  the  fact  of  a  changed  residence 
and  the  intention  of  changing  concurred,  the  status  of  distribu- 
tion and  of  testacy  should  be  rather  according  to  the  law  of  the 
domicile  he  left,  as  the  true  locus  of  a  last  domicile.'* 

'  Somerville    ;/.    Somerville,    5    Ves.  ^  Burnett  v.  Meadows,  7  B.  Mon.  277. 

786;  Crookenden  7'.  Fuller,  i  Sw.  &Tr.  And   see   George  v.   Watson,   19  Tex. 

441;  Green   v.   Green,    11    Pick.    410;  354;  Briggs  i^.  Rochester,  16  Gray,  337. 

Wms.  Exrs.  1518,  and  Perkins's  note;  '•State   v.   Hallett,  8  Ala.    159,    per 

2  Kent  Com.  431.  Ormond,    J.     Perhaps,  if  the  domicile 

^  See  Aspinwall  v.  Queen's  Proctor,  left  were  an  acquired  domicile,  the  dom- 

2  Curt.  241.  icile  of  origin  would  revive.     Thisisthe 

3  II 


§   24  EXECUTORS    AND    ADMINISTRATORS.  [PART   I. 

Questions  of  this  character  are,  however,  seldom  raised  with 
reference  to  administration  ;  and  the  courts  of  a  State  or  coun- 
try do  not  appear  unwilhng  to  maintain  the  domestic  sovereign 
jurisdiction  to  grant  letters  upon  the  estate  of  a  decedent  where 
it  appears  convenient  to  do  so,  provided  some  claim  may  be  set 
up  that  the  last  domicile  or  residence  was  within  such  limits ; 
or,  if  a  jurisdiction  can  be  founded  upon  the  locality  of  as- 
sets.' Under  our  statutes  relating  to  administration,  the  word 
"  domicile  ■' is  not  alone  employed;  but  local  jurisdiction  may 
be  determined,  to  use  the  express  words  of  various  local  enact- 
ments, by  the  last  "  residence  "  of  the  intestate,  if  he  have  one 
(or  the  place  where  he  was  last  an  "inhabitant");  or,  if  he 
have  no  such  residence,  etc.,  then  by  the  place  of  his  death.^ 

§  2^a.  Local  Appointment  to  Prosecute  a  Statutory  Action 
for  Tort  Causing  Death.  —  It  is  a  question  upon  which  authorities 
somewhat  differ  as  yet,  as  to  whether  the  court  of  a  county  where- 
in a  non-resident  of  the  State  is  killed,  may  appoint  an  adminis- 
trator to  prosecute  a  statutory  action  for  the  injury  causing 
such  death,  when  the  decedent  left  no  other  property  in  the  State 
but  such  right  of  action,^ 

§  24.  Locality  of  Personalty  or  Bona  Notabilia  may  confer 
Jurisdiction,  aside  from  Domicile  ;  Questions  of  Double  Jurisdic- 
tion. —  Last  domicile  affords  the  suitable  principal  forum  for 
procuring  credentials  of  authority  and  settling  the  estate  of  a 
deceased  person.  But  inasmuch  as  the  collection  of  credits 
and  effects,  the  payment  of  debts,  the  distribution  of  the  residue, 

English  theory.     See  Lyall  v.  Paton,  25  where  the  intestate  had  no  residence  was 

L.  J.  Ch.  746;  Udny  v.  Udny,  L.  R.  i  to  be  determined  by  the  place  of  his 

H.   L.   Sc.  458.      In  Olson's  Will,  63  death  or  the  county  wherein  his  e.state 

Iowa,   145,  a  man,  after  roaming,  was  or  the  greatest  part  thereof  might  be. 

held  to  have   settled  down   where  he  ^  This   right   is  lately    upheld    by   a 

died.  majority  of  the  court  in  Missouri  Pa- 

'  As   to   jurisdiction    founded    upon  cific  R.  v.  Bradley,  51    Neb.  596.     See 

locality  of  property,  see  next  section.  authorities  fro  and  con  amply  cited  ib. ; 

'  See  Burnett  v.  Meadows,  7  B.  Mon.  6S  Mich.  33;  36  Conn.  213;  102   Mass. 

277,278.     Under  the  Kentucky  statute  186;   53   111.    224,  etc.;   (W//;v7  29  Kan. 

referred  to  in  this  case,  administration  420;  26  Ind.  477. 

34 


PART   I.]  INTKODUCTION.  §    24 

and  the  final  settlement  of  the  estate,  are  of  universal  conven- 
ience, the  courts  of  one  country  or  State  do  not  feel  compelled 
to  wait  until  those  of  another  have  acted,  nor  to  submit  domestic 
claims  to  foreign  jurisdictions;  but,  aside  from  the  deceased 
person's  last  domicile,  and  a  principal  probate  appointment,  a 
competent  local  and  ancillary  appointment  is  procurable,  on  the 
suggestion  that  property  requiring  administration  lies  within  the 
local  jurisdiction.  In  other  words,  locality  of  personalty  be- 
longing to  the  estate  of  a  deceased  person  may  confer  a  local 
probate  jurisdiction  regardless  of  the  consideration  of  his  last 
domicile.  This  general  doctrine  is  amply  recognized  in  the 
statutes  of  England  and  the  several  United  States  which  relate 
to  probate  jurisdiction." 

So,  too,  within  the  same  national  or  sovereign  jurisdiction, 
the  locality  of  personal  property  may  afford  in  various  instances 
occasion  for  probate  jurisdiction  in  two  or  more  local  courts  ;  as 
where  one  dies  intestate,  being  domiciled  abroad,  and  leaves  ef- 
fects in  the  county  of  A  and  the  county  of  B.^  In  England, 
prior  to  the  enactment  of  statute  20  &  21  Vict.  c.  ^j,^  questions 
of  conflicting  jurisdiction  might  arise  where  one  died  leaving 
bona  notabilia,  or  notable  goods,  of  jC'^  value  or  more,  in  differ- 
ent dioceses."*  But  a  convenient  rule,  sanctioned  by  statute  in 
some  American  States,  is  that  when  a  case  lies  within  the  juris- 
diction of  the  probate  court  in  two  or  more  counties,  the  court 
which  first  takes  cognizance  thereof  by  the  commencement  of 
proceedings  shall  retain  the  same ;  and  administration  first 
granted  shall  extend  to  all  the  estate  of  the  deceased  in  the 
State,  and  exclude  the  jurisdiction  of  the  probate  court  of  every 
other  county.5 

Debt's  due  the  deceased  may  be  deemed  bona  notabilia,   i.e., 

'  See posi,  Part  II.,  as  to  foreign  and  in  H.  L.  C.  i,  which  are  disapproved, 

ancillary  appointments.      "  The  propo-  Ewing  v.  Ewing,  9  App.  Cas.  34,  39. 

sition,  that  the  courts  of  that  country  ^  lb. 

only  in  which  a  testator  dies  domiciled  ^  i.e.,  Probate  Court  act.      See  supra, 

can  administer  his  personal  estate,   is  §  14. 

without   support   from  any  authority,"  ■•  Wms.  Exrs.  289,  290. 

except  certain  dicta  of  Lord  West  bury  '  Mass.  Gen.  Stats,  c.  1 17,  §  3- 

35 


§    24  EXECUTORS    AND    ADMINISTRATORS.  [PART   I. 

personalty  suitable  for  conferring  a  local  probate  jurisdiction.' 
And  the  rule  is  that  judgments  are  bona  notabilia  where  the 
record  is,  specialties  where  they  happen  to  lie,  and  simple  con- 
tract debts  where  the  debtor  (not  the  creditor)  resides,  and 
where  they  can  be  sued  upon.-  Interest  in  insurance  money  is 
assets,  conferring  a  local  jurisdiction  to  appoint.''  So  is  any 
chose  in  action  or  money  right,  this  being  personal  j^roperty  and 
assets. •»  Modern  kinds  of  incorporeal  j^ersonal  property  may 
furnish  disputes  as  to  their  locahty  for  such  a  purpose,  which  the 
courts  have  not  as  yet  clearly  settled.  But  where  the  personal 
proj^crty  consists  of  a  debt  owing  upon  some  security  or  document 
of  title,  which  of  itself  is  commonly  transferable  as  possessing  a 
mercantile  value,  the  local  situation  of  such  security  or  docu- 
ment of  title  would,  in  various  instances,  be  well  held  to  confer 
a  probate  jurisdiction,  as  of  bona  notabilia,  apart  from  the  oblig- 
or's or  debtor's  place  of  residence ;  as  where,  for  instance,  a 
sa\ings-bank  book,  coupcjn-bond,  certificate  of  stock,  or  perhaps 
a  jiromissory  note  were  left  lying  in  another  jurisdiction. 5  How- 
ever this  may  be  (and  the  inclination  of  each  State  or  country 
is  to  uphold  its  own  jurisdiction),  a  jurisdiction  founded  upon 
the  place  where  the  obligation  is  enforceable  is  still  sustained, 
whether  as  concurrent  or  exclusive  ;  thus  shares  of  stock  are 
held  bona  notabilia   in   the  county  and  State  where  the  stock 


'  A   lioiia  Jidc  claim  of  tlie  deceased  ^  Butson,  Ke,  9  L.  R.  Ir.  21  ;  Holyoke 

will  sustain  the  jurisdiction,  even  though  v.  Mutual  Life  Ins.  Co.,  29  N.  Y.  Supr. 

it  should  appear  after  the   letters  were  75;  Wyman  v.  Halstead,  109  U.  S.654. 

issued  that  the  claim  was  invalid.     Sul-  Cf.  100  Tenn.  177. 

livan  V.  Fosdick,  17  N.  V.  Supr.  123.  *  Murphy  ?'.  Creighton,  45  Iowa,  179; 

'^  Attorney  General  r'.  Bouwens,  4  M.  P"ox  v.  Carr,  16  Hun  (N.  V.)  434. 

&  W.   191  ;  Vaughan  T'.   Barrett,   5  Vt.  '  Beers  -■.   Shannon,   73   N.   V.   292. 

2,2,Z',  I'inney  v.  McGregory,   102  Mass.  As  to  negotiable  notes,  see,  also,  Good- 

186, /f;- Gray,  J.     Negotiable  notes  are  lett  z'.  Anderson,   7    Lea,   286;  but  cf. 

hotia  nolahilia  in  the  jurisdiction  of  last  Owen  v.  Miller,  10  Ohio  St.  136.     The 

domicile  when  left  there  at  the  time  of  rule  above  cited  in  the  text  is  a  very  old 

the  decedent  holder's  death.     Goodlett  one  that  specialty  debts  are  bona  nota- 

7:  Anderson,  7  Lea,  286.     As  to  United  /i/titi  where  the  bond  or  other  specialty 

States  Ixjnds  deposited  for  safe  keeping  is ;  the  distinction  made  being  that  debt 

by  a  citizen  of  another   State,  upon  a  upon  .simple  contract  follows  the  person 

special  certificate  of  deposit  transferable  of  the  debtor.     Cro.  Eliz.  472;  Swinb. 

by   indorsement,    see    Shakespeare    7:  pt.  6,  §  ii. 
Fidelity  Insurance  Co.,  f)7  Penn.  St.  17-5. 


PART  I.]  iNrKoni'inioN.  §  25 

books  are  kept  and  dividends  paid.'  Cash,  furniture,  and  cor- 
poreal chattels  are  of  course  bo)ia  notabilia  where  they  lie.- 

If  an  assignment  be  given  as  collateral  security  for  a  debt  of 
the  assignor,  the  debt  is  the  asset,  and  the  assignment  only  in- 
cident. If  an  assignment  be  absolute,  it  should  be  regarded 
only  as  a  muniment  of  title  which  follows  the  situs  of  the 
specialty  or  other  thing  assigned.  And  so,  as  it  is  said,  of  a  cor- 
poreal chattel ;  a  bill  of  sale  transferring  that  chattel  follows  the 
situs  of  the  chattel  as  the  thing  happens  to  lie.^ 

Wherever  the  local  statute  lias  i)rescribed  a  jurisdiction  with- 
out limitation  of  value,  articles  or  money  rights  of  trifling  con- 
sequence will  uphold  the  local  part  of  administration.-*  But  it 
is  assumed  that  the  thing  was  left  or  found  in  the  local  juris- 
diction so  as  to  call  bona  JidcU^x  the  grant,  and  has  not  been 
brought  from  elsewhere  for  the  purjjose  of  giving  falsely  a  col- 
orable and  pretended  jurisdiction  to  the  local  court. 5 

§  25.  The  Subject  continued;  whether  Assets  brought  in  may 
confer  Jurisdiction.  —  The  rule  of  strict  Construction  would  seem' 
to  refer  the  locality  of  personalty  in  such  cases  to  the  sit/is  as 
existing  at  the  time  o{  the  deceased  owner's  or  creditor's  dcntli. 
Such  an  interpretation,  however,  is  too  narrow  to  meet  the 
practical  needs  of  a  probate  appointment  for  local  purposes  in 
modern  times ;  an  appointment  which  perhaps  may  not  be  in- 
voked for  years  after  one's  death.  Hence,  for  the  welfare  of 
creditors  and  other  interested  parties,  this  right  of  local  appoint- 
ment is  more  liberally  asserted  in  many  of  the  courts,  and  local 
jurisdiction  is  upheld  on  the  ground  that  bona  notabilia  exist 
when  letters  are  applied  for,  notwithstanding  the  goods  were 

'  Arnold    v.    Arnold,    62    Ga.    627 ;  to   confer  a   jurisdiction.    2    Demarest 

Emery  v.  Hildreth,  2  Gray,  231  ;  Owen  (N.  Y.)  265. 

V.  Miller,  10  Ohio  St.  136;  cf.  Goodlett  ^  Holyoke  v.  Mutual   Life  Ins.  Co., 

V.  Anderson,  7  Lea,  286.     And  see,  as  29  N.  Y.  Supr.  75,  77,  per  Gilbert,  J. 

to  a  mortgage  note  where  the  note  and  Hee  post.  Part  II.,  as  to  foreign  and  an- 

its  security  are    enforced  in  a   certain  ciliary  appointments, 

jurisdiction,  Clark  v.  Blackington,  iio  "   Emery  v.   Hildreth,  2   Gray,  231; 

Mass.  369,  373.     As  to  stock,  see  Rus-  Wilkins  v.  Ellett,  loS  U.  S.  256. 

sell  V.  Hooker,  67  Conn.  24.  ^  Wells  t/.  WelLs,  35  Miss.  638  ;  Saurez 

^  A  folding-chair  is  property  sufficient  v.  Mayor,  2  Sandf.  Ch.  173. 

37 


§  2$a  p:xecutoks  and  admixistkators.  [part  i. 

brought  into  the  country,  or  the  debtor  removed  thither  subse- 
quently to  the  death  of  the  owner  or  creditor ; '  and  this  seems 
the  better  opinion,-  unless  such  bringing  in  or  removal  was  in 
bad  faith,  and  with  the  intention  of  conferring  improperly  a  col- 
orable probate  jurisdiction.  According  to  the  modern  current 
of  opinion,  moreover,  letters  of  administration  issued  from  a 
court  of  competent  authority  upon  the  estate  of  a  deceased  per- 
son non-resident,  will  be  presumed  in  all  collateral  proceedings 
to  have  been  properly  granted.^ 

§  25^?.  The  Subject  continued;  Suits  for  Assets  owing  by  a 
Corporation.  —  "In  the  growth  of  this  country,"  observes  a  re- 
cent case,  "and  the  expansions  and  ramifications  of  business, 
and  the  free  commercial  intercourse  between  the  States  of  the 
Union,  it  has  come  to  pass  that  large  numbers  of  life  and  fire 
insurance  companies  and  other  corporations,  established  with 
the  accumulated  capital  and  wealth  of  the  richer  parts  of  the 
country,  seek  business  and  contracts  in  distant  States  which 
'open  a  large  and  profitable  field.  The  inconveniences  and  hard- 
ships resulting  from  the  necessity  on  the  part  of  creditors,  of 
going  to  distant  places  to  bring  suits  on  poUcies  and  contracts, 
and  from  the  additional  requirement,  in  case  of  death,  of  taking 
out  letters  testamentary  or  of  administration  at  the  original 
domicile  of  the  corporation  debtor,  in  order  to  sue,  has  led  to 
the  enactment  in  many  States  of  statutes  which  enable  resident 

'  See,  in  Pinney  -'.  McGregory,   102  assets  with  him,  may,  it  seems,  be  held 

Mass.    186,    the  learned    opinion    pro-  to  account  in  chancery  as  a  trustee  for 

nounced  by  Gray,  J.;  Sir  John  Nicholl  those  in  interest.     Dilliard  v.  Harris,  2 

in  Scarth  v.  Bishop  of  I^ndon,  i  Hagg.  Tenn.  Ch.  196. 

Ecc.   636.     The   debtor  having  volun-         ^  Hobson  v.  Ewan,  62  111.   146;  Ap- 

tarily  come  to  another  State  for  a  tem-  pointment,  Part  W.,  post. 
porary  purpose    after    the    decedent's         As  a  rule  there  cannot  be  two  valid 

death,  the  right  to  appoint  an  ancillary  grants  of  administration  on   the  same 

administrator,  and  the  right  of  that  ad-  estate  within  a  State  or  country  (or,  in 

ministrator  to  sue  upon  the  debt,  has  other  words,  within  the    same  general 

been  sustained.     Fox  v.  Carr,  16  llun  jurisdiction)  at  the  same  time.     But  see 

(N.  Y.)  434.  statute  provision  for  the  instance  where 

*  But  of.  Christy  v.  Vest,  36    Iowa,  the  assets  are  removed  to  another  coun- 

285  ;  Goodlett  v.  Anderson,  7  Lea,  286.  try,  etc.,  after  one's  appointment.    Wat- 

A    foreign    representative   who   comes  kins  v.  Adams,  32  Miss.  ;^22- 
within    another    jurisdiction,    bringing 

3« 


I'AKT   I.]  INTKoni'CTION.  §   2/ 

creditors  to  bring  suits  there  against  corporations  created  by  the 
laws  of  other  States." '  The  reason  why  the  State  which  char- 
ters a  corporation  is  its  domicile  of  other  States  in  reference  to 
debts  which  it  owes,  is  because  there  only  can  it  be  sued  or 
found  for  the  service  of  process ;  but  this  is  now  changed  in 
cases  by  local  statutes ;  and  federal  courts  hold  that  a  corpora- 
tion of  one  State  doing  business  in  another  is  suable  in  the  fed- 
eral courts  established  in  the  latter  State,  if  the  laws  of  that 
State  so  provide,  and  in  the  manner  those  laws  provide.^ 

§  26.  The  Subject  continued  ;  Right  of  Action  created  by  Local 
Statute  confers  no  External  Jurisdiction.  —  A  right  of  action 
created  by  statute  in  one  State  or  country  is  not  to  be  regarded 
as  property  or  assets  which  can  confer  a  local  probate  jurisdic- 
tion in  another  State  or  country ;  as,  for  instance,  where  the 
representative  of  a  person  whose  death  was  caused  by  the 
wrongful  act  or  negligence  of  another  is  permitted  contrary  to 
the  common-law  rule  to  sue  and  recover  damages.^  If  the  local 
statute  empowers  such  action  to  be  brought  against  a  railway 
or  other  corporation,  it  may  be  said,  moreover,  that  corporations, 
being  local  to  the  State  or  country  which  creates  them,  the 
right  of  action  against  them  must  be  local  to  the  same  State  or 
country.'* 

§  27.  Whether  Locality  of  a  Decedent's  Real  Estate  may  con- 
fer Jurisdiction.  —  Locality  of  real  estate  may  often  confer  a 
jurisdiction  to  appoint  an  administrator  in  various  American 
States.5  Thus,  it  is  held  in  Massachusetts  that  administration 
may,  upon  the  petition  of  a  local  creditor,  be  granted  on  the 
estate  of  a  person  who  dies  a  resident  of  another  State,  lea\ang 
only  real  estate  in  Massachusetts ;  notwithstanding  his  general 
estate  is  solvent,  and  an  administrator  has  been  appointed  in 

'  Mr.    Justice    Blatchford   in    N.    E.  "  lb.     See  §  z^a. 

Mutual  Life  Ins.   Co.    v.   Woodworth,  ^  Hart  v.   Coltrain,   19    Wend.   378; 

III  U.  S.  138,  144.  Apperson  v.  Bolton,  29  Ark.  418  ;  Pres- 

'^Ib. ;  Lafayette  Ins.  Co.  f.    Harris,  cott  z'.  Durfee,  113  Mass.  477;  Sheldon 

12  Wall.  65;  96U.  S.  369;  104  U.  S.  5.  1/.   Rice,   30    Mich.   296;  Rosenthal    ?■. 

'  Illinois  Central  R.  v.  Crazin,  71  111.  Remick,  44  111.  202;  Beasleysy.  Howell, 

177.  117  Ala.  499. 

39 


§   29  EXECUTORS    AND    A  inilN  ISTRATORS.  [PART   I. 

the  State  where  he  last  resided."  Achninistratioii  ma}-,  indeed. 
be  granted  upon  the  basis  of  real  property  alone,  under  suitable 
circumstances,  consistently  with  the  policy  of  many  of  our 
States.-  For  the  local  policy  is,  while  granting-  letters,  as,  of 
course,  with  a  primary  reference  to  settling  a  decedent's  per- 
sonal estate,  to  license  a  sale  of  real  estate  in  case  the  person- 
alty proves  insufficient ;  and  the  local  appointment  simply  puts 
local  creditors  in  a  position  to  thus  assert  their  rights  against 
the  real  estate,  without  determining  of  itself  whether  the  land 
shall  actually  be  sold  or  not.^ 

§  28.  Constitutional  Points  affecting  Administration  in  the 
United  States. —  Warious  constitutional  i)oints  have  been  raised 
in  our  several  State  courts,  most  of  which  are  referable  to 
familiar  principles.  Thus  it  is  held  that  a  local  act  which  draws 
a  distinction,  in  the  distribution  of  the  assets  of  persons  dying 
insolvent,  between  persons  whose  deaths  occurred  before  the 
act  went  into  operation  and  those  who  should  die  afterwards,  is 
not  unconstitutional  in  the  sense  of  "  impairing  the  obligation 
of  contracts "  ;  and  that  under  such  reservations  the  old  rule, 
according  priority  to  judgment  creditors,  may  well  be  abolished. •♦ 
A  special  act  of  the  legislature,  it  is  also  held,  may  change  the 
administration  of  an  estate  from  one  county  to  another.^ 

§  29.  Probate  Jurisdiction  exercised  by  each  State  separately; 
United  States  Courts  should  not  interfere. —  In  the  United  States, 
each  State  regulates  the  settlement  of  estates  in  its  own  juris- 
diction, and  no  administration  is  extra-territorial.  In  each  State, 
accordingly,  estates  may  be  settled  and  claims  ]:)n)ved  under  the 

'  Prescott?/.  Durfee,  supra.     And  .see  '  Wright  v.  Ware,  50  Ala.  549.     And 

a-s  to  postponing  the  right  of  the  for-  see    Peters  ?-.   PulMic  Administrator,   i 

eign  and  domiciliary  representative  to  Rradf.  Sur.  (N.  Y.)  200.     The  repeal  of 

sell,  Apperson  v.  Bolton   and    Sheldon  a  law  designating  a  certain  official    as 

V.  Rice,  supra.  administrator  does  not  ipso  facto  revoke 

^  Lees  V.  Wetmore,  58  Iowa,  17c.  the  letters,  but  leaves  the  probate  court 

3  Temples   v.    Cain,    60    Miss.    478;  to   act  accordingly.     Hull   ;■.    Neal,  27 

Moore  v.  Moore,  33  Neb.  509.  Miss.  424.     The  law  in  force  when  the 

••  Deichman's  Appeal,  2  Whart.   395.  representative  gave  bond  is  presumed 

And  see  Place  v.  Oldham,   10  B.  Mon.  to  govern  as  to    its  prosecution.     Mc- 

400-  (iovney  v.  State,  20  Ohio,  93. 

40 


PART    I.]  INTRO  1)1  •C'lIOX.  §    29<7 

State  laws.  No  foreign  proof  of  claims  can  be  enforced  if  the 
State  chooses  to  require  a  re-allowance;  nor  can  a  foreign  judg- 
ment, however  respected  as  evidence,  be  enforced  as  a  judgment 
in  the  domestic  jurisdiction  without  being  established  in  new 
legal  proceedings.  Whatever  may  be  done  with  the  final  bal- 
ance, as  between  a  domiciliary  and  ancillary  jurisdiction,  a  dead 
person's  estate  must  be  administered  under  the  probate  laws 
and  system  of  the  State  granting  letters,  up  to  the  time  of 
distribution,  or  until  adjudication  is  made  as  to  the  final  balance. 
And  it  would  appear  that  a  decree  by  a  federal  court  cannot 
affect  strangers  to  the  record  or  interfere  with  the  regular  pro- 
bate settlement  of  an  estate  in  a  State  court  which  has  probate 
jurisdiction.' 

In  fact,  it  appears  well  settled  that  a  circuit  court  of  the 
United  States  has  no  jurisdiction  to  afifirm  or  set  aside  a  will  or 
the  probate  thereof,  in  the  proper  State  forum  ;  ^  nor  can  such 
jurisdiction  be  taken  to  disturb  or  interfere  with  the  due  admin- 
istration of  an  estate  under  State  probate  direction.^  Ikit  to 
some  extent  an  equity  jurisdiction,  incidental  to  the  enforce- 
ment of  trusts,  is  here  recognized,^  and  also  for  construction  of 
a  will,  locally  established. ^ 

§  2C)a.  Interested  Parties  only  are  regarded  in  Probate  Pro- 
cedure.—  It  is  a  fundamental  rule,  whether  in  the  probate  of  a 
will  or  in  the  appointment  or  removal  of  executors  or  adminis- 
trators, or  in  the  general  supervision  of  the  administration  of 
estates,  that  only  parties  in  immediate  interest,  agreeably  to 
the  preferences  defined  or  indicated  by  local  statutes,  can  be 
regarded  as  having  a  standing  to  litigate  or  appeal.^ 

'  Dickinson  v.  Seaver,  44  Mich.  624.  Fed.  417.     ^.^.  where  the  neces.sary  di 

^  Broderick's  Will,  21  Wall.  503;  versity  of  citizen  exists,  or  other  con- 
Ellis  z/.  Davis,  109  U.  S.  485.  stitutional    ground.     And  see  61    Fed. 

^  Byers  v.   McAuley,   149  U.  S.  608;  423;  134  U.  S.  47. 
21  Wall.  276;  112  U.  S.  294.  *"  See    McCutchen    v.    Loggias,    109 

-•  See  58  Fed.  717;   Hayes  v.   Pratt,  Ala.  457.     This  will  appear  more  fully 

147  U.  S.  557.  in  the  course  of  our  investigation. 

5  Colton  7'.  Colt  on,  127  U.  S.  301  ;  52 

41 


PART  II. 

APPOINTMENT   AND   QUALIFICATION  OF  EXECUTORS 
AND  ADMINISTRATORS. 


CHAPTER    I. 

APPOINTMENT    OF     EXECUTORS. 


§  30.  Modern  Definition  of  Executor.  —  While  in  modem  times 
it  cannot  be  strictly  said  that  the  designation  of  a  particular  ex- 
ecutor is  essential  in  order  to  constitute  a  will,  every  executor 
doubtless  derives  his  authority  from  such  an  instrument.  An 
executor  should  in  fact  be  defined  as  one  to  whom  the  deceased 
has  duly  committed  the  execution  or  putting  in  force  of  his  last 
will  and  testament ;  or,  in  other  words,  the  settlement  of  his 
estate.'  In  such  a  connection  Jiacirs  tcstamentariiis  is  the  usual 
term  of  the  Roman  law  as  to  movables  ;  and  as  Lord  Hardwicke 
once  observed,  "executor  "  is  a  barbarous  term  unknown  to  that 
law ;  ^  the  truth  being,  however,  that  the  testator  seldom  com- 
mitted execution  (or  perhaps  one  should  say,  administration)  to 
any  other  person  than  the  testamentary  heir  himself ;  whereas, 
by  the  codes  of  modern  Europe,  the  general  employment  of 
executors  is  partly  favored,  as  persons,  not  necessarily  legatees, 
but  rather  official  representatives  of  the  estate,  to  carry  out  the 
provisions  of  the  will.^ 

'  2   Bl.  Com.  503  ;   i   Wms.  Exrs.  7th  guards  for  particular  legatees  and  other 

ed.    226;     Bouv.   Diet.    "Executors";  persons  interested  in  the  estate.     lb. 
supra,  §  3.  Swinburne  and  other  early  writers  of 

*3  Atk.  303.  our  law  state  other  acceptations  of  the 

3  Domat    Civ.    Law,    §§    Zl)Z'^~ZiZ~-  word  "  executor "  inclusive  of  admittis- 

What  we  call  "executor  and  residuary  trator,  but  the  executor  a  testatorc  consti- 

legatee  "  corresponds  to  this  testamen-  tuUis,  or  executor  testamentarius  is  the 

tary   heir  of  the  Roman   law,   against  only   one   meant    in    modern    English 

whose  knavery  it  was  found  necessary  speech,     i  Wms.  Exrs.  226. 
after  long  experience  to  extend  the  safe 

42 


CHAP.    I.]  APPOINTMENT    OF    liXKCUTOKS.  §    32 

§31.  Designation  of  Executor  under  a  Will ;  the  Trust  may 
be  absolute  or  qualified.  —  Whenever  the  testator  nominates  an 
executor,  this  is  enough  to  make  his  instrument  a  will  and  re- 
quire its  probate  as  such,  even  though  no  legacy  be  given  and 
no  special  direction  of  a  testamentary  character.  Nor  is  it  un- 
common for  one  to  make  his  last  will  and  testament  for  the 
sole  purpose  of  selecting  or  nominating  the  person  or  persons 
who  shall  administer  ;  meaning  that  his  estate  shall  be  managed 
and  distributed  upon  his  decease  as  though  he  had  died  in- 
testate.' 

Furthermore,  the  interest  of  every  executor  in  his  testator's 
estate  is  what  the  testator  may  have  given  him  ;  and  hence  a 
testator  may  make  the  trust  absolute  or  qualified  respecting  his 
property ;  qualifying  the  trust  as  to  the  subject-matter,  the 
place  where  the  trust  shall  be  discharged,  and  the  time  when 
the  executor  shall  begin  and  continue  to  act  as  such." 

So  favorably  are  regarded  a  testator's  wishes  that  wherever 
one  commits  by  will  the  execution  of  a  trust  to  the  executors 
named  therein,  no  other  person  can  execute  the  trust  while  any 
of  the  executors  is  living  and  has  not  declined  the  office  of  ex- 
ecutor nor  been  shown  to  be  unsuitable.^ 

§  32.  Who  are  capable  of  becoming  Executors;  Rule  as  to 
Married  Women,  Infants,  Corporations,  Aliens,  &c.  —  All  persons, 
generally  speaking,  are  capable  of  becoming  executors  who  are 
capable  of  making  wills.-*  The  favor  of  our  law  extends  even 
further  in  this  respect.  For,  while  a  wife,  under  the  old  rule  of 
coverture,  was  held  incapable  of  making  contracts  or  a  valid  will,^ 
the  husband  might  concur  in  the  appointment,  or,  so  to  speak, 
perform  the  trust  vested  in  her  as  executrix  or  administratrix ; 
and  only  the  wife's  temporary  legal  disabihty,  and  the  husband's 
liability  for  her  acts,  obstructed  practically  her  sole  performance 
of  such  duties  under  an  appointment  which  the  spiritual  courts 

'Lancaster,  Goods  of,  i    Sw.   &   Tr.  ^ Hayes  </.  Pratt,  147  U.  S.  557. 

464  ;  Jordan,  Goods  of,  L.  R.  i  P.  &  D.  *  2  Bl.  Com.  503. 

555  ;   I  Wms.  Exrs.  227.  '  As  to  her  will,  see  Schoul.  Hus.  and 

=  Mr.  Justice  Wayne  in  Hill  t.  Tucker,  Wife,  §§  457-470  ;    Schoul.  Wills,  Pail 

13  How.  466.     And  see  §  40, /<«/.  H,  c.  3. 

43 


§  3-2 


E:.\ECUT0RS    AM)    ADMINISTRATORS. 


[far-, 


at  all  events  were  inclined  to  i"ecot,mize.'  If  a  married  woman 
may  not  become  legally  bound  on  her  bond  as  executrix,  this 
constitutes  a  practical  objection  still  to  her  appointment.-  An 
infant,  too,  though  not  of  full  testamentary  capacity,  may,  how- 
ever young,  and  even  while  unborn  and  ///  vcjitir  sa  mere  be 
appointed  executor;^  our  modern  statutes,  however,  disqualily- 
ing  one  from  performing  the  functions  of  sole  executor  during 
his  minority,  and  granting  administration  cnui  tcstamcnto  anncxo 
to  another  until  such  infant  shall  have  attained  minority.-* 

Whether  a  corporation  aggregate  can  be  executor  has  long 
been  doubted. 5      In  some  parts  of  the  United   States  this  point 


'  Schoul.  Hus.  and  Wife,  §§  163,  460, 
and  cases  cited;  i  Wrtis.  Exrs.  232-235. 
Wife  made  sole  executrix  with  her  hus- 
band's consent.  Stewart,  In  re,  56  Me. 
300.  And  see  Lindsay  v.  Lindsay,  i 
Desau.  150.  Statutes  sometimes  re- 
quire the  husband  to  join  in  the  wife's 
bond  as  executrix.  See  Airhart  v. 
Murphy,  32  Tex.  131  ;  Cassedy  f.  Jack- 
son, 45  Miss.  397.  Local  statutes 
greatly  enlarge  at  the  present  day  the 
married  woman's  rights  in  these  as  in 
other  respects.  Schoul.  Hus.  and  Wife, 
Appendix;  Curser,  Re,  25  Hun,  579. 
As  to  the  capacity  of  a  wife  for  such 
trusts  where  living  separated  from  her 
husband,  see  Hardinge,  Goods  of,  2 
Curt.  640.  And  see  as  to  administra- 
tion by  a  wife,  §  io6. 

The  English  canon  law,  like  the  civil, 
made  no  distinction  between  women 
married  and  unmarried,  and  hence  per- 
mitted a  wife  to  take  upon  her  the  pro- 
bate without  the  consent  of  her  husband. 
Godolph.  Pt.  2, c.  10,  §  3;  Dye,  Goods 
of,  2  Robert.  342.  But  such  were  the 
practical  disabilities  of  coverture,  and 
the  necessity  of  joining  husband  and 
wife  in  suits,  that  chancery  sometimes 
enjoined  the  wife  from  performing  the 
duties  of  executrix.  Taylor  ■;■.  Allen, 
2  Atk.  212.  And  see  2  Wms.  Exrs. 
233-235;  English   V.   McNair,  34  Ala. 


40.  The  husband  cannot  compel  his 
wife  to  accept  an  executorship,  i  Wms. 
Exrs.  235.  He  may  object,  however,  to 
her  doing  so;  though  it  is  held  under 
English  statutes  that  having  so  ob- 
jected, where  she  was  named  sole  exec- 
utrix, the  grant  may  be  made  to  her 
attorney.  Clarke  7'.  Clarke,  L.  R.  6  V. 
D.  103.  A  man  marrying  a  woman  who 
is  an  executrix  becomes  executor  in  her 
right  and  as  such  accountable.  Wood 
7'.  Chetwood,  27  N.  J.  Eq.  311;  Schoul. 
Hus.  and  Wife,  §  163. 

^  Hammond  7'.  Wood,  15  N.  J.  566. 

^  Wms.  Exrs.  232  ;  I'iggot's  Case,  5 
Co.  29  a;  2  Bl.  Com.  503. 

■*  38  Geo.  HL  c.  88,  §  6.  Previous  to 
tliis  statute  an  infant  seventeen  years 
old  might  in  England  act  as  executor. 
See  post  as  to  administration.  As  to 
American  statutes,  see  Chri.stopher  v. 
Cox,  25  Miss.  162  ;  Schoul.  I)om.  Rel. 
§  416.  The  reque.st  in  a  will  that  cer- 
tain executors  shall  serve  until  the  tes- 
tator's son  becomes  twenty-one,  is  not 
an  appointment  of  the  son  at  twenty- 
one.  Frisby  v.  Withers,  61  'I'ex.  134. 
The  "  beneficiary  heir  "  is  favored  under 
La.  Rev.  Code.  And  if  he  be  a  minor 
%vith  parents  living,  they  are  entitled  to 
the  executorship  as  representing  him. 
Gusman's  Succession,  36   La.  An.  299. 

5 1   Wms.  Exrs.  7th  ed.  228,  229. 


44 


CIIAl'.   I.]  Al'I'OINTMKNT    OF    EXECUTORS.  §    33 

is  decided  adversely  as  to  aggregate  corporations  in  general ; ' 
though  companies  may  now  be  found  whose  charters  expressly 
permit  the  exercise  of  such  functions  in  connection  with  the 
care  and  investment  of  trust  funds.  Modern  English  practice 
recognizes  the  right  of  a  corporation  unsuitable  for  the  trust, 
which  is  named  executor,  to  nominate  persons  who  may  execute 
the  trust  in  its  stead. ^  A  corporation  sole  or  official,  such  as 
the  mayor  of  London  or  the  bishop  of  Exeter,  may  be  and  act 
as  executor.  And  so  may  a  co-partnership,  in  the  sense  that 
the  individual  members  composing  it,  and  not  the  firm  collec- 
tively, shall  be  entitled  to  the  trust. ^ 

Non-residence  does  not  necessarily  disqualify  an  executor  at 
common  law.  Thus  an  alien  friend  is  not,  by  the  English  law, 
disqualified  from  becoming  an  executor  ;  and  even  as  to  alien 
enemies,  the  rules  of  modern  warfare  regard  the  j^rivate  inter- 
ests of  foreigners  more  generously  than  formerly.-*  In  the 
United  States  the  right  of  non-residents  to  become  executors  or 
administrators  is  regulated  by  local  legislation  not  by  any  means 
uniform  ;  but  the  better  policy  favors  such  rights,  provided  that 
adequate  security  be  furnished  for  protecting  the  interests  of 
parties  dwelling  within  the  State,  so  that,  at  all  events,  the  non- 
resident may  designate  the  party  resident  who  should  represent 
him  ;  while,  as  between  citizens  merely  of  different  States,  any 
rigid  rule  of  exclusion  seems  especially  harsh. ^ 

§  33.  "Who  are  Capable  of  becoming  Executors;  Rule  as  to 
Criminals,  Dissolute  Persons,  Insolvents,  etc.  —  The  principle  thus 
indicated  is  that,  one's  choice  of  an  executor  by  his  last  will  be- 

'  Georgetown  College  v.  Browne,  34  differs  in  various  States.  Most  of  the 
Md.  450;  Thompson's  Estate,  33  Barb,  decisions  relate,  however,  to  adminis- 
334.  Qu.  as  to  the  New  Jersey  rule,  trators,  and  perhaps  an  executor  de- 
Porter  V.  Trail,  30  N.  J.  Eq.  106.  serves  greater  consideration.     See  Mc- 

-  Darke,  /;/  re,  i  Sw.  &  Tr.  516.  Gregor  7a  McGregor,  i    Keyes  (N.  Y.) 

3  Fernie,    Jn  re,  6  Notes  of  Gas.  657  ;  133  ;  Hammond  v.  Wood,  15  R.  I.  566 ; 

I  Wms.  Exrs.  229.    As  to  making  one'.s  §  109;  Cutler  v.  Howard,  9  Wis.  309; 

probate  judge  his  executor,  see  Gregory  Sarkie's  Appeal,  2  Penn.  St.  157. 

V.  Ellis,  82  N.  C.  225 ;  Ayres  v.  Weed,  ^  As  to  refusing  to  take  the  oath  of 

16  Conn.  291.  allegiance,  see  Vogel  v.  Vogel,  20  La. 

••See  2  Wms.  Exrs.  229-231,  and    ;/.  Ann.  181. 
by  Perkins;   Co.  Lit.  129   b.     The   rulij 

45 


§    ^T,  EXECUTORS    AM)    AHM 1  \  ISTKATORS.  [PART   II. 

ing  SO  solemn  an  act,  and  b)-  a  i)ers()n  legally  capable  of  making 
a  choice  among  friends  and  kindred,  his  last  wishes  should  be 
heeded.  And  so  far  has  our  law  carried  this  principle  as  to 
permit  persons  obviously  unsuitable  for  the  trust  to  exercise  it 
to  the  detriment  of  creditors  and  legatees,  on  the  suggestion 
that  the  testator,  at  all  events,  must  have  confided  in  such  a 
person.  Moreover,  as  courts  have  observed  with  a  touch  of 
false  logic,  the  ofifice  of  executor  being  held  in  another's  right, 
is  not  tainted  by  his  personal  guilt."  Hence,  not  only  might 
persons  attainted  or  outlawed  for  political  offences  become  ex- 
ecutors, but  even  those  convicted  of  felony  ;  crime  seldom  if 
ever  operating  to  disqualify  one  for  the  trust  ;^  and  persons  im- 
moral or  habitual  drunkards  were  permitted  to  serve.^  But  the 
tendency  of  our  modern  legislation  is  to  correct  this  evil,  not  by 
permitting  a  qualified  executor's  authority  to  be  collaterally  im- 
peached, but  by  enlarging  the  discretionary  power  of  courts 
having  probate  jurisdiction,  so  that  persons  dissolute  or  other- 
wise, and  evidently  unsuitable,  shall  not  be  qualified,  or,  if  qual- 
ified, may  be  afterwards  removed  for  cause  duly  shown. ■♦  For 
the  interests  of  creditors  and  legatees  should  be  respected  more 
than  any  gratification  of  the  testator's  caprice  in  selecting  the 
trustee  of  those  interests  ;  and  the  proper  execution  of  his  will 
is  paramount  to  execution  by  any  particular  agency,  such  as  the 
testator  may  have  selected  without  cognizance  of  the  objections 
which  others  have  disclosed  since  his  death. 

Hence,  too,  poverty,  or  even  insolvency,  constitutes  no  legal 

'Smethurst  z/.  Tomlin,  2S\v.  &T.  143.  see  McGregor  r:   McGregor,  3;^   How. 

^  I  Wms.  Exrs.  7th  ed.  235,  236  ;  Co.  (N.  Y.)  Pr.  456,  36  Hun,  122.     Letters 

Lit.  128a;  3  Bulst.   210;   Killigrew  7'.  refused  to  the  paramour   of  a  dissolute 

Killigrew,    i    Vern.   1S4 ;  Smethurst  i'.  testatrix.      Plaisance's    Estate,    Myrick 

Tomlin,  2  .Sw.  &  T.   143.  (Cal.)  117.    But,  aside  from  statute,  the 

3  Sill  z/.  McKnight,  7  W.  &  S.  244;  court  cannot  refuse  to  qualify  an  ex- 
Berry  V.  Hamilton,  2  B.  Mon.   191.  ecutor  on  account  of  his  immoral  char- 

*  See  post,  c.  2,  as  to  appointing  ad-  acter.  Berry  z/.  Hamilton,  12  B.  Mon. 
ministrators.  These  statutes  have  ref-  191.  Nor  for  want  of  integrity  or  of 
erence  to  both  executors  and  adminis-  business  experience.  Smith's  Appeal, 
trators.  And  for  habitual  drunkenness,  61  Conn.  420  (construing  "incapable" 
as  well  as  lunacy,  duly  shown,  the  let-  accordingly).  Even  "want  of  integ- 
ters  testamentary  may  be  revoked,  rity,"  is  a  disqualification  to  be  strictly 
Sill  7A  McKnight,  7  W.  &  S.  244;  construed  against  one  named  as  ex- 
Webb  V.  Dietrich,  7  W.  &  S.  402.   .Xnd  ecutor.     88  Cal.  303. 

46 


CHAP.  I.]         APPOINTMENT  OF  EXECUTORS.  i^  33 

cause  at  common  law  for  disqualifying  one  from  the  office  of 
executor ;  and  thus  have  English  cases  insisted  to  the  extent  of 
compelling  spiritual  courts  to  respect  the  testator's  choice, 
where  the  executor  named  had  absconded,  or  after  the  probate 
had  become  bankrupt,  and  where  legatees  were  left  without 
adequate  security."  In  consequence,  however,  of  such  hard- 
ships, the  court  of  chancery  assumed  jurisdiction,  and  receivers 
may  now  be  appointed  under  its  direction,  and  the  bankrupt  or 
insolvent  restrained  from  committing  acts  injurious  to  the  es- 
tate." This  jurisdiction  in  the  United  States  is  aided  further 
by  local  statutes  which  require  an  executor  to  give  bonds  to  the 
probate  court  for  the  faithful  discharge  of  his  trust,  either 
with  or  without  sureties,  as  may  be  adjudged  prudent  in  the  in- 
terests of  the  estate.^  Chancery,  aside  from  such  legislation, 
may  oblige  an  insolvent  executor,  like  any  other  trustee,  to  fur- 
nish security ;  *  but  not  because  of  his  poverty  or  insufficient 
estate  alone ;  ^  and  where  it  is  shown  that  the  testator  made 
his  choice  knowing  that  the  person  in  question  was  bankrupt 
or  insolvent,  the  court  hesitates  to   control  the  latter,  out  of 

'  I  Salk.  36,  299;  3  Salk.  162  ;  Swinb.  offers  solvent  sureties   has  a  good  right 

pt.  5,  §§  2-10;  I  Wms.  Exrs.  230;   Ila-  to  qualify,  if  legally  and  mentally  capa- 

thornthwaite  v.  Russell,  2  Atk.   127.  ble.     Holbrook  v.  Head,  (Ky.)  6  S.  W. 

^'Rex  V.  Simpson,  i  W.  Bl.  458;    Ut-  592. 
terson  z/.    Mair,    2  Ves.  jr.  95;    Scott  f.         *i  Eq.  Cas.   Abr.   238,   pi.    22;  Bac. 

Becher,  4  Price,   346;   Ellis,   Ex  parte,  Abr.  Executors,  A.  6;  Slanningz/.  Style, 

I  Atk.   loi  ;  Elmendorf  z/.   Lansing,    4  3   P.   Wms.   336;    i   Wms.   Exrs.  237; 

John.  Ch.  562.     So,  too,  where  an  ex-  Mandeville    v.    Mandeville,    8    Paige, 

ecutrix  marries  a  man   bankrupt  or  in-  475. 

solvent,  who  would  otherwise  have  mis-  ^  Hathornthwaite  v.  Russell,  2  Atk. 
managed  the  trust  in  her  right.  Stair-  126;  Mandeville  z/.  Mandeville,  8  Paige, 
ley  z'.  Babe,  i  McMull.  Ch.  22.  Author-  475 ;  Wilkins  v.  Harris,  i  Wins.  (N. 
ity  under  bankrupt  acts  appears  to  be  an  C.  Eq.)  41 ;  Bowman  z/.  Wootton,  8 
element  in  such  jurisdiction.  Pecu-  Mon.  67.  Mere  poverty  existing  at  the 
niary  circumstances  of  a  widow  or  near  testator's  death,  without  maladministra- 
relative  named  as  executrix  should  not  tion,  loss,  or  danger  of  loss,  from  mis- 
be  taken  to  defeat  the  selection  unless  conduct  or  negligence,  will  not  author- 
the  reasons  are  strong,  i  Dem.  396,  ize  a  court  of  equity  to  put  the  execu- 
501.  tor  under  a  bond,   or,  as  an  alternative, 

'  See  post  as  to  bonds  of   executors  require   him    to    give    up    the    office. 

and  administrators.     An  executor  who  Fairbairn  v.  Fisher,  4  Jones  Eq.  390. 

47 


§    33  EXECUTORS    AND    ADMINISTRATORS.  [PART.   II. 

mere  regard  to  those  adversely  interested,  unless  invested  with 
a  statute  discretion.' 

By  both  the  common  and  civil  law,  idiots  and  lunatics  have 
been  deemed  incapable  of  becoming  executors  ;  a  good  reason, 
at  the  outset,  being  that  such  a  person  cannot  determine 
whether  to  accept  the  trust  or  not  ;  and  since,  furthermore,  an 
insane  person  is  in  no  condition  to  perform  the  functions  of  the 
office  at  all,  the  court  may  commit  administration  to  another 
where  the  executor  becomes  afterwards  insane.^  In  some  of 
our  States  legislation  provides  fully  for  the  emergency  by  fa- 
cilitating the  power  of  making  removals  in  such  cases.^ 

Modern  legislation,  however,  enlarges  the  control  of  probate 
courts  over  improper  testamentary  appointees.  Thus,  in  Mass- 
achusetts, the  probate  court  has  a  discretionary  power  to  re- 
move or  refuse  to  appoint  executors  when  insane  or  otherwise  in- 
capable of  discharging  the  trust,  or  evidently  unsuitable  therefor.-* 
In  the  New  York  code,  the  necessary  qualifications  of  an  executor 
are  prescribed  with  minuteness  ;  and  drunkenness,  dishonesty, 
improvidence,  want  of  understanding,  conviction  of  an  infamous 
crime,  may  render  one  incapable  of  exercising  the  trust,  as  well 
as  other  causes,  to  be  referred  to  the  principle  of  unsuitable- 
ness.5     While,  therefore,   on  the  whole,  the  old  law  dealt   ten- 

■  Wms.  Exrs.  237  ;  Langley  7'.  Hawke,  bard,  J.  ib.  So,  too,  under  a  similar 
5  Madd.  46.  It  should  not,  however,  Wisconsin  statute,  a  hostile  feeling  be- 
be  readily  inferred  from  the  mere  cir-  tween  the  executors  and  parties  inter- 
cumstances  of  execution  that  the  testa-  ested  plainly  detrimental  to  the  man- 
tor  expected  that  the  person  would  be  agement  of  the  estate  may  justify  re- 
a  bankrupt  or  insolvent  when  the  time  moval.  Pike's  Estate,  45  Wis.  391. 
came  to  assume  the  functions  of  execu-  An  executor  ought  not  to  be  removed, 
tor.     Ib.  after  having  been   once  appointed  and 

^Bac.  Abr.    Executors,  A.  5  ;  i    Salk.  qualified,    as    evidently   unsuitable   for 

36 ;   I  Wms.  Exrs.  238 ;  Evans  r-.  Ty-  the   discharge  of  his    trust,   simply  on 

ler,  2  Robert.  128,  134.  proof   that    he   was    unsuitable  at    the 

^McGregor  v.   McGregor,    i    Keyes,  time  of   his  appointment   and    without 

■33;  33  How.  (N.  Y.)  Pr.  456.  proof   that    he    continues    to    be    so. 

*Mass.  Pub.  Slats,   c.  131,  §  14.     As  Drake  v.  Green,  10    Allen,    124.     And 

a    person    "evidently  unsuitable,"  one  see  Hursey  z^.  Cofiin,  i  Allen,  354.     An 

may  be  removed  or  refused  the  cxecu-  interest   conflicting  with   legatees  does 

torship,   on  the  ground  that   his  indi-  not  make  one  incompetent   at  common 

vidual  claims  on  the  estate  would  con-  law  as  executor.     Hauquier  A'r,   SS  Cal. 

flict  with  his  duties  as  executor.  Thayer  303. 

V.  Homer,  11  Met.  104,  no.     ."^ce  Huh  'See    Mc(iregor    v.     McGregor,     33 

48 


CHAP.    I.]  APPOINTMENT    OF    EXECUTORS.  §   36 

derly  with  the  choice  of  the  deceased,  modern  statutes,  and 
more  perhaps  those  of  the  United  States  than  of  England,  re- 
gard with  much  concern  the  interests  of  those  taking  rights 
under  the  will ;  and,  instead  of  sanctioning  temporary  grants  by 
way  of  supersedure  for  an  emergency,  permit  rather  that  let- 
ters testamentary  be  refused  or  the  unsuitable  incumbent  sum- 
marily removed  from  office. 

§  34.  Miscellaijeous  Disabilities  for  the  Office. —  It  should  be 
added  that,  so  long  as  probate  law  was  shaped  by  canonists  and 
ecclesiastics,  and  persecutions  were  made  for  conscience'  sake, 
numerous  religious  disabilities  existed  in  English  law,  which 
have  since  been  taken  off  by  Parliament,  and  at  the  present  day 
find  recognition  neither  in  England  nor  the  United  States.' 

§  35.  Express  Appointment  of  Executor  by  Testament.  —  An 
executor  must  necessarily  derive  his  appointment  from  a  testa- 
ment ;  for  if  the  will  designates  no  one  for  that  office,  the  court 
commits  the  trust  to  an  administrator  with  the  will  annexed.^ 
Nor,  as  the  old  books  have  said,  can  an  executor  be  instituted 
by  a  mere  codicil  ;  though  executors  doubtless  may  be  substi- 
tuted or  added  by  a  codicil,  where  the  original  will  made  the 
primary  appointment.^ 

§  36.  Constructive  Appointment  by  designating  Functions,  etc.; 
Executor  according  to  the  Tenor.  —  But  no  particular  form  of  ap- 

How.  (N.  Y.)  Pr.  456;  I  Keyes,  133;  .  17th  and  i8th  centuries,  by  legislation ; 
Freeman  ?'.  Kellogg,  4  Redf.  (N.  Y.)  relating,  for  instance,  to  Popish  recu- 
218.  And  see  Webb  v.  Dietrich,  7  W.  sants  on  the  one  hand,  and  those  deny- 
&  S.  402 ;  Plaisance's  Estate,  Myrick  ing  the  Trinity  or  the  Christian  re- 
Pro  b.  117.  ligion  on  the  other.     See  Wms.   Exrs. 

'  Not  only  were  traitors    and  felons  7th  ed.  237,  238. 

considered  incapable  of  becoming  exec-  ^  i  Wms.    Exrs.   239  ;   3  Redf.  Wills, 

utors  by  the  civil   and  canon  law,  but  2d  ed.  62. 

heretics,    apostates,    manifest    usurers,  ^Swinb.  pt.   i,    §   5,  pi.   5;   i    Wms. 

infamous  libellers,  incestuous  bastards,  Exrs.  8.     As  for  naming  A.  sole  execu- 

and  persons  standing  under  sentence  of  tor  in  a  will,  and   B.  sole   executor  in 

excommunication.     Swinb.   pt.  5,  §§  2-  the  codicil,  see  Wetmore  v.  Parker,  7 

6.     Other  disqualifications  were  created  Lans.    121.     And   see    Woods,    Goods 

during    the    religious    struggles    of  the  of,  I,.  R.  i  P.  &  D.  556. 

4  49 


§    37  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

pointing  an  executor  is  prescribed,  nor  is  it  necessary  that  one 
be  designated  by  that  particular  name.  A  constructive  ap- 
pointment suffices  :  as  where  the  testator  indicates  his  desire 
that  the  essential  functions  of  that  office  shall  be  discharged  by 
a  certain  person  ;  in  which  case  one  is  said  to  become  executor 
under  the  will  according  to  the  tenor.'  Thus  the  testator's 
declaration  that  A.  B.  shall  have  his  goods  to  pay  his  debts  and 
otherwise  to  dispose  at  his  pleasure,  and  such  like  expressions,^ 
may  suffice  for  this  purpose.  So,  too,  the  commitment  of  one's 
property  to  the  "administration  "  or  to  "the  disposition  "  of  A. 
B.  ;  3  or  the  direction  that  A.  B.  shall  pay  debts  and  funeral 
and  probate  charges  ;  or  shall  receive  the  property  and  pay  the 
legacies ;  '•  or  the  gift  to  A.  B.  of  all  one's  property,  to  apply 
the  same,  "  after  payment  of  debts,"  to  the  payment  of  legacies  ;  s 
or  the  naming  of  trustees  "  to  carry  out  this  will,"  for  the  due 
execution  of  this  will  "and  to  pay  the  debts  "  and  the  like.^ 
For  all  such  expressions  point  at  the  essential  functions  of  an 
executor ;  functions  which  exist  in  consistent  combination. 
Any  words  which  substantially  confer  upon  a  person,  either  ex- 
pressly or  by  imphcation,  the  rights,  powers,  and  duties  of  an 
executor,  amount  to  such  appointment  under  the  will.^ 

§  37.  The  same  Subject;  Mere  Designation  of  Trustees,  Lega- 
tees, etc.,  Insufficient  for  Executorship.  —  Where,  however,  the 
court  cannot  gather  a  testamentary  intent  that  the  person  in 
question  should  collect  dues,  pay  debts,  and  settle  the  estate  like 
an  executor,  executorship  according  to  the  tenor  will  not  be 
granted.      For  instance,  it  will  not  if  A.  B.  is  designated  simply 

•Fraser,   Goods  of,   L.  R.  2   P.  &  D.  Lee,  401  ;    2   Redf.    Wills,   2d  ed.   62; 

183;    I  Wms.  Exrs.  239,  and  Perkins's  Fry,  Goods  of,  i  Hagg.  80. 

note;  Hartnett  v.   Wandell,  60  N.  Y.  '  Bell,  Goods  of,   L.  R.  4   P.  D.  85. 

350;  State  V.   Rogers,    i    Houst.   569;  And  see  Manly,  In  re,  L.  R.  i  P.  &  D. 

Carpenter  v.   Cameron,   7    Watts,   51  ;  556;  Bradley's  Goods,  8  P.  D.  215. 

Grant  v.  Spann,  34  Miss.  294;  Myer  z/.  *  Russell's  Goods  (1892),  P.  380;  lb. 

Daviess,  10  15.  Mon.  394.  227. 

^  Henfrey  v.   Henfrey,  4  Moo.  P.  C.  '  Carpenter  v.  Cameron,  7  Watts,  51  ; 

33;  Cro.  Eliz.  43.  Grant  v.  Spann,  34  Miss.  294;  Nunn  v. 

^Cro.  Eliz.    164;   I  Wms.    Exr.s.  239.  Owens,  2  Strobli.  101. 

*  Pickering  v.  Towers,  2  Cas.  tem]). 

50 


CHAP.   I.]  APPOINTMENT    OF    EXECUTORS.  §   3/ 

to  perform  some  trust  under  the  will ; '  since  trustees  under  a 
will  are  not  necessarily  executors,  but  are  i)ostponed  in  office  to 
the  latter  and  to  a  due  administration  of  the  estate,  taking  out 
separate  letters ;  otherwise,  however,  when  the  execution  of  the 
will  was  evidently  conferred  likewise  upon  the  trustees,  the  style 
of  the  parties  as  such  concluding  by  no  means  their  right  to  be 
considered  executors  also,  and  to  receive  letters  in  such  capacity.^ 

A  testamentary  direction  that  one's  property  shall,  upon  his 
decease,  go  at  once  to  the  legatees  or  to  trustees,  as  if  to  dis- 
pense with  administration  and  the  payment  of  debts  altogether, 
or  to  confer  the  authority  out  of  course,  would  be  nugatory  ;  ^ 
and,  in  such  case,  the  will  having  provided  neither  expressly  nor 
by  implication  for  a  lawful  executor,  the  case  becomes  one  for 
granting  administration  with  will  annexed,  the  usual  procedure, 
as  we  shall  see  hereafter,  wherever  there  is  a  will  but  no  executor.'* 
As  for  language  in  a  will  referring  to  one  as  "  executor  and 
trustee,"  it  should  be  observed  that  the  offices  of  executor  and 
trustee  are  distinct,  and  that  duties  of  the  trust  are  properly  to 
be  performed  in  a  separate  capacity  from  those  of  executor.s 

Earlier  authorities  favor  the  position  that  one  who  is  named 
universal  heir  or  legatee  under  a  will  may  take  probate  as  exec- 
utor ;^  but  unless  language  importing  the  right  to  settle  the  es- 
tate is  superadded,^  the  better  and  the  present  practice  is  to 
grant  him  administration  with  the  will  annexed,  instead  of  let- 
ters testamentary  according  to  the  tenor.^ 

'Jones,  Goods  of,  2  Sw.  &  T.  155;  Shaw,  C.  J.;  Hunter  ?'.  Bryson,  5  Gill 

I   Wms.  Exrs.  242 ;  Punchard,  Goods  &  J.  483. 

of,  L.  R.  2   P.  &  D.  369  ;  Wheatley  z>.  *  See  Administration,  fosL 

Badger,  7  Penn.  St.  459.  '  Wheatley   v.    Badger,   7    Penn.   St. 

^  Myers  t.  Daviess,  10  B.  Mon.  394 ;  459. 

McDonnell,  £x  parte,  2  Bradf.  Surr.  32  ;  *  Godolph.  pt.  2,  c.  5,  §  3  ;  Swinb.  pt.  4, 

State  V.  Watson,  2   Spears  (S.  C.)   97.  §4,  pi.  3;  Androvin  z/.  Poilblanc,  3  Atk. 

And  see  Knight  v.  Loomis,  30  Me.  204  ;  301,  per  Lord  Hardwicke. 

Simpson  v.  Cook,   24   Minn.   180,  that  ^  Grant  v.  Leslie,  3  Phillim.  116. 

naming   the  same  person   as  executor  ^  i  Wms.  Exrs.  240 ;  Oliphant,  Goods 

and  trustee  does  not  necessarily  extend  of,  i   Sw.  &  Tr.  525.     And  see  Adam- 

the  trusteeship  to  others  who  may  be  son.  Goods  of,   L.   R.  3   P.  &  D.  253. 

appointed  to  execute  the  will.  Where  the  testator  bequeathed  all  his 

3  Toomy,  Goods  of,  3  Sw.  &  Tr.  562  ;  property  to  his  three  sisters,  or  to  such 

Drury  7).  Natick,  10  Allen,  174;  New-  of  them  as  survived  him,  and  appointed 

comb    V.    Williams,    9    Met.    533,    per  either  one  "  his  sole  executrix,"  and  only 

51 


§  40  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

§  38.  The  same  Subject;  Identifying  the  Executor.  —  There 
should  be  some  means  of  identifying-  the  person  designated  by 
the  will  to  serve  as  executor,  else  the  designation  cannot  operate. 
But  an  executor  who  is  imperfectly  described  or  designated  in 
the  will  may,  by  extrinsic  evidence,  be  identified  as  the  person 
actually  intended  by  the  testator."  So  an  erroneous  and  ambig- 
uous description  in  the  will  may  be  corrected  by  extrinsic  evi- 
dence showing  which  of  twt)  persons  was  really  meant. ^ 

§  39.  The  same  Subject;  Suggested  Executor;  Adviser,  etc. — 
The  appointment  of  a  sole  or  joint  executor  may  be  by  way  of 
request  or  suggestion  rather  than  mandate  on  the  testator's  part,^ 
and  a  probate  court  may  consider  its  force  accordingly. 

One  who  is  named  in  the  will  as  though  an  assistant  in  the 
trust,  is,  by  American  practice,  usually  qualified  like  any  co- 
executor  ;  ICnglish  cases  follow  often  the  same  rule.  But  a  tes- 
tator will  sometimes  name  another  person  besides  his  actual 
executor  to  advise,  oversee,  or  assist  the  latter  in  the  perform- 
ance of  his  duties  ;  and  such  a  person,  not  unfrequently  encoun- 
tered in  English  practice,  has,  if  so  the  testator  obviously  in- 
tended, none  of  the  rights  or  responsibilities  of  executor,  nor  any 
right  to  intermeddle,  but  may  advise,  complaining  to  the  court 
if  his  advice  is  injuriously  neglected.'*  A  will  is  not  readily  con- 
strued in  intent  to  require  peremptorily  the  employment  of  any 
particular  person  as  legal  adviser.^ 

^  40.  The  same  Subject;  Conditional  Appointment;  Substitu- 
tion; Co-executors,  etc. —  From  a  will,  or  the  will  and  codicils 
taken  together,  may  be  deduced  various  provisional  appointments 

one  survived  him,  held  that  this  was  in-  -  Brake,  Goods  of,  29  W.  R.  744. 

sufficient  designation  of  her  as  executrix.  '  Brown,   Goods  of,   25    W.   R.  431. 

Blackwell,  Goods  of,  25  W.  R.  305.  Where  trustees  of  a  certain  lodge  are 

'  In  De  Rosaz,  Goods  of,  25  W.  R.  designated,  the  appointees  may  be  as- 

352,    "Perceval  of   B.,   Esquire,"  certained.     2  Dem.  (N.  V.)  91. 

was  shown  to  be  a  friend  of  the  testator,  "  i  Wms.  Exrs.  7th  ed.  244  ;   I'owell  ?■. 

a  person  whose  middle  name  was  "  Per-  Stratford,  cited  3  Phillim.  118:3  I^edf. 

ceval."     And  see  Wigram,  Evid.  4th  ed.  Wills,  2d  ed.  63. 

98;  Clayton  v.  Lord  Nugent,  13  M.  &  *  Foster  v.  Elsley,  L.   R.  19  Ch.  Div. 

W.  207;  Baylis  v.  Attorney  General,  2  518;  Ogier  Re,  loi  Gal.  381. 

Atk.  239;  Schoul.  Wills. 

52 


CHAP.   I.]  APPOINTMENT    OF    EXECUTORS.  §  4O 

of  executor.  These  should  be  respected  according  to  the  testa- 
tor's manifest  intent.  Thus,  if  one  be  made  executor  upon  con- 
dition that  another  will  not  accept  or  is  dead,  the  latter,  if  he 
prove  alive  and  willing  at  the  time  of  probate  to  accept,  must  be 
accorded  the  preference,  as  the  language  of  the  will  implies.' 
An  executor  by  the  tenor  may  be  qualified  jointly  with  one  ex- 
pressly nominated.^ 

Where  several  executors  are  named  or  designated,  all  may  be 
qualified  as  co-executors,  though  all  are  thus  legally  regarded  as 
an  individual,  in  place  of  a  sole  executor.^  A  testator  may,  how- 
ever, appoint  several  executors  under  his  will,  substituting  one 
after  another  in  order,  so  that,  if  the  first  cannot  act,  the  next 
may,  and  so  on ;  in  which  case  the  question  may  arise,  whether 
the  substitution  relates  merely  to  a  precedence  once  and  for  all 
at  the  time  the  will  takes  effect,  or  so  as  to  provide  for  a  successor 
whenever,  prior  to  a  final  settlement  of  the  estate,  a  vacancy 
may  possibly  occur  in  the  office.^  The  appointment  of  executors 
under  a  will  may  be  revoked  by  the  substitution  of  others  under 
a  codicil,5  or  a  re-appointment  with  others  may  be  made  instead  ;^ 
and  of  various  persons  named  as  co-executors,  he  or  they  who 
may  be  alive  and  willing  to  accept  the  trust  on  the  testator's  de- 
cease can  alone  be  deemed  qualified  for  the  office. 

An  executor  by  the  tenor  may,  if  the  will  so  intended,  receive 
letters  jointly  with  an  executor  expressly  named.^  And  a  per- 
son expressly  appointed  executor  for  limited  purposes  may,  by  a 
codicil,  receive  by  implication  full  general  powers.^  There  is  no 
legal  objection  to  qualifying  one  executor  for  general  purposes, 

'  I    Wms.    Exrs.   243 ;  2   Cas.   temp,  sor,  when  duly  appointed,  possesses  the 

Lee,  54 ;  Swinb.  pt.  4,  §  4,  pi.  6.  powers  of  an  executor,  and  not  merely 

*  Grant  v.   Leslie,  3    Phillim.  116;   i  those  of  an  administrator  «V  ^(w/j  //^w. 

Wms.  Exrs.  245.  Kinney  v.  Keplinger,  172   111.  449,  and 

'  I  Wms.  Exrs.  246.  cases  cited. 

1  Langford,  Goods  of,  L.  R.  i  P.  &  D.         =  Bailey,  Goods  of,  L.  R.   i    P.  &  D. 

458  ;  Wilmot,  Goods  of,  2  Robert.  579 ;  608. 

Lighton,  Goods  of,  i  Hagg.  235.   Where         ^  Leese,  Goods  of,  2  8w.  &  Tr.  442. 
the  will  appoints  an  executor,  naming         ^  i  Wms.  Exrs.  245  ;  Grant  v.  Leslie, 

another  to  act  in  the  event  of  the  for-  3  Phillim.  116. 
mer's  death  and  to  discharge  such  duties         "  Aird,  Goods  of,  1  Hagg.  336. 
as  were  left  unperformed,  such  succes- 

53 


§   41  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

and  another  for  some  limited  or  special  purpose,  if  such  be  the 
testator's  manifest  intention.' 


§41.  Testator's  Delegation  of  the  Powor  to  name  an  Executor 
or  Co-executor.  —  The  English  ecclesiastical  courts  were  accus- 
tomed to  grant  letters  testamentary  as  executors  to  persons 
named  by  those  who  had  a  nominating  power  conferred  under 
the  will.-  And  under  the  English  wills  act,  this  practice  is  still 
sanctioned.^  In  some  parts  of  the  United  States  also,  the  tes- 
tator's right  to  delegate  to  some  person  designated  in  the  will 
the  power  to  name  an  executor  is  likewise  upheld.^  And  thus 
may  a  testator  authorize  the  probate  court  to  appoint  as  executor 
a  suitable  person  in  the  event  of  the  resignation,  inability,  or  re- 
fusal to  act,  of  the  executor  named  by  the  testator  himself  in  his 
will. 5  So  too,  may  he  in  his  will  delegate  the  authority  to  his 
legatees,  or  a  majority  of  them,  to  name  the  executor.^  Recent 
cases  have  in  this  manner  permitted  further  a  successorship  to 
be  maintained,  so  that  of  two  or  more  original  executors,  the 
survivor  or  survivors  shall  fill  the  vacancy ;  ^  all  of  which,  how- 
ever, should  be  subject  to  the  court's  discretion.  A  like  delega- 
tion of  power  may  be  to  one  executor,  in  order  that  he  may  name 
his  own  associate."^  A  person  authorized  to  nominate  an  exec- 
utor has  sometimes  nominated  himself,  and  thus  obtained  the 
office.'^ 

'  Lynch  7'.  Bellevv,  3  Phillim.  424  ;  i  reserving  power  to  himself  to  deal  in- 

Wms.  Exrs.  245.  formally  hereafter  with  his  will. 

^  Cringan,  Goods  of,  i  Hagg.  548.  '  State  v.  Rogers,  i  Houst.  (Del.)  569. 

'  2   Redf.   Wills,  63 ;   i    Wms.   Exrs.  Such  per.son  being  hereby  "  appointed 

245-247  ;  Jackson  v.  Paulet,  2  Robert,  to  be  my  executor,"  in  the  language  of 

344.  the  will,  it  is  proper  for  the  court  to 

••  Hartnett  v.  Wandell,  60  N.  Y.  346.  grant  him  letters  testamentary  instead 

Here,  as  in  Jacivson  v.  Paulet,  supra,  it  of  letters  of  administration  with  the  will 

is  maintained  that  a  .statute  requirement  annexed.     lb. 

that  the  court  shall  issue  letters  to  the  *  Wilson    ?'.     Curtis,    151    Ind.  471  ; 

persons  named  in  a  will   as  executors  Bishop  v.  Bishop,  56  Conn.  208. 

docs  not  preclude  the  issue  of  letters  to  ^  Deichman,  Goods  of,  3  Curt.  123  ; 

one  not  expressly  named  but  duly  desig-  Jackson  v.  Paulet,  2  Robert.  344. 

nated  as  such  by  virtue  of  such  a  power.  *  Hartnett  v.  Wandell,  60  N.  Y.  346. 

The  case  is  unlike  that  of  a  testator's  *  Ryder,  Goods  of,  2  Sw.  &  Tr.  127. 

54 


CHAT.   I.]  APPOINTMENT    OF    EXECUTORS.  §  42 

§  42.  Limited  or  Conditional  Executorship. —  From  what  has 
been  said,  the  reader  will  infer  that  the  office  of  executor  is  not 
always  conferred  absolutely.  Wills,  we  know,  are  usually 
drawn,  so  that  A.  B.  is  named  executor,  or  perhaps  A,  B.  and 
C.  D.,  or  A.  B.,  C.  D.,  and  E.  F.  ;  and,  whether  one  or  more 
executors,  the  rights  and  duties  thus  devolve  upon  the  person 
or  persons  named,  fully  and  immediately  upon  the  testator's 
death  ;  so  that,  if  there  be  a  condition  precedent  at  all,  it  is  only 
such  as  probate  law  interposes  in  order  that  the  will  may  be 
duly  proved  and  the  executor  qualified  by  letters  testamentary. 
But  a  testator  may,  and  sometimes  does,  impose  conditions  and 
limitations  under  the  will  at  his  own  discretion ;  and  the  old 
books  state  numerous  instances  of  the  sort.  Thus,  the  execu- 
tor's appointment  may  be  conditional  upon  his  giving  security 
for  paying  the  debts  and  legacies,'  or  so  long  as  he  does  not  in- 
terfere with  M.'s  enjoyment  of  Blackacre,^  or  after  he  has  paid 
such  a  debt,3  or  provided  he  prove  the  will  within  three  calendar 
months  after  the  testator's  death  ;  **  and  such  condition  failing, 
whether  precedent  or  subsequent,  the  appointment  fails  upon 
the  usual  principle  of  a  conditional  appointment. 

Again,  there  may  be  limitations  placed  by  the  testator  upon 
the  exercise  of  the  office ;  as  where  one  commits  the  execution 
of  his  will  in  different  countries  5  (or  even,  as  the  old  books  lay 
it  down,  in  different  counties  ^)  to  different  persons.     So  it  is 

'  Godolph.  pt.  2,  c.  2,  §  1  ;  I  Wms.  country.  This  does  not  entitle  the  Por- 
Exrs.  7th  ed.  253.  The  procurement  of  tuguese  executor  to  letters  in  England, 
such  security,  where  prudence  requires  Velho  v.  Leite,  3  S\v.  &  Tr.  456.  So 
it,  is  an  element  in  modern  probate  there  may  be  general  executors  entitled 
practice,  independently  of  the  testator's  to  letters  in  England,  and  hmited  exec- 
directions.     See  bonds,  c.  5,/cj-r.    -  utors  added  for  India.     Wallich,  Goods 

^  Dyer,  3  b,  pi.  8  ;  Cro.  Ehz.  219.  of,  3  Sw.  &  Tr.  453.     As  to  granting 

3  Stapleton  v.  Truelock,  3  Leon.  2,  ancillary  letters  in  a  State  or  jurisdic- 

pl.  6.  tion  foreign  to  the  place  of  the  testator's 

''  Wilmot,  Goods  of,  i  Curt.  i.   Here  domicile  and  place  of  original  probate 

the  day  of  death  was  held  to   be  ex-  or  administration,  see  c.  fost,  ancillary 

eluded  in  the  computation  of  time.  appointments. 

5  Hunter  v.  Bryson,  5   Gill  &  J.  483;  ^  Swinb.  pt.  4,  §  18,  pi.  I,  4;    i  Wms. 

Mordecai  v.  Boylan,  6  Jones  Eq.  365;  Exrs.    251,    252.      Such    a  division  of 

Despard  z/.  Churchill,  53  N.  Y.  192.    An  localities  in  one  jurisdiction,  however, 

English  testator  appoints  a  resident  of  seems  unreasonable  in  practice. 
Portugal   to    be   his    executor    in    that 

55 


§  42  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

said  that  one  may  divide  the  duties  of  executor  with  reference 
to  the  subject-matter  :  appointing  one  for  the  cattle,  another  for 
the  household  stuff,  another  to  grant  leases,  and  another  to 
collect  debts ; '  but  Lord  Hardwicke  exposed  the  absurdity  of 
such  a  division,  inasmuch  as  executors  must  act  jointly,  and 
each  have  authority  as  to  the  whole  estate  ;  ^  and  creditors  cer- 
tainly may  sue  them  in  such  a  case  as  united  in  privity,  just  as 
though  there  were  only  one  executor. ^ 

There  may  be  a  postponement  of  the  office,  as  some  proviso 
by  way  of  succession  or  the  substitution  of  one  executor  or  set 
of  executors  for  another.  Thus,  two  persons  may  be  appointed 
executors  with  a  provision  that  the  one  shall  not  act  during 
the  life  of  the  other ;  ■»  or  so  that  B.  shall  succeed  A.  in  case  of 
A.'s  death,  incapacity,  or  unwillingness  to  serve.5  So,  too,  one 
may  be  appointed  for  a  definite  period  of  time,  or  during  the 
minority  of  a  son,  or  the  widowhood  of  a  wife,  or  until  the 
death  or  marriage  of  a  son,  or  the  remarriage  of  a  widow,  or 
while  the  instituted  executor  is  absent  from  the  country.*^  In 
all  such  cases,  if  a  vacancy  in  the  office  occurs  at  any  time 
which  the  will  itself  does  not  supply,  whether  permanent  or  dur- 
ing the  interval  that  must  elapse  between  the  ending  of  one  ex- 
ecutorship and  the  beginning  of  another,  the  probate  court 
should  grant  administration  with  the  will  annexed  of  such  tenor 
as  the  emergency  requires.^ 

In  short,  there  may  be  various  qualifications  imposed  by 
one's  will  upon  the  executor  or  executors  therein  ai)pointed. 
Various  substitutes  may  be  designated  to  serve  upon  one  and 

"  Dyer,  4  a;  Godolph.  pt.  2.  c.  3,  pi.  tioned  by   Swinburne  and  other  early 

2,  3;   I  Wms.  Exrs.  252.  writers;  as,  where  the  testator  appoints 

^  Owen   V.    Owen,    i    Atk.  495,  per  one  to  be  his  executor  at  the  end  of  five 

Lord  Hardwicke.  years  after  his  death,  or  at  an  uncertain 

^  Cro.  Car.  293;  3  Redf.   Wills,    2d  time.     S-winb.  pt.  4,  §17,  pi.  1-4.     Ex- 

ed.  65.     And  see  Mr.  Justice  Wayne  in  cept  it  be  by  way  of  substituting  some 

Hill  V.  Tucker,  13  How.  (U.  S.)  466.  new  executor   for  a  predecessor  upon 

*  Wentworth    Off.  Ex.   13;   i    Wms.  the  happening  of  some  event,  such  ex- 

Exrs.  250,  251  ;  3  Redf.  Wills,  65.  ecutorships  are  seldom  created. 

5  Lighten,  Goods  of,  i  Hagg.  235.  ''3    Redf.    Wills,    65;    Swinb.   pt.  4, 

'Wms.    Exrs.  251;   Carte  v.  Carte,  §  17,  pi.  2.     See  c.  post  as  to  adminis- 

3  Atk.  180;  Cro.  Eliz.   164;  2  Cas.  t.  tration  \\ith  the  will  annexed. 
Lee,    371.     Other   instances  are   men- 

56 


CHAP.    I.]  APPOINTMENT    OF    EXECUTORS,  8  43 

another  contingency,  and  in  succession  instead  of  jointly ;  exec- 
utors, moreover,  may  be  appointed  having  separate  and  distinct 
functions  to  discharge,  some  full  and  general,  others  limited  and 
special,  in  authority.  For,  as  Mr.  Justice  Wayne  has  observed, 
while  the  estate  of  an  administrator  is  only  that  which  the  law 
of  his  appointment  enjoins,  an  executor's  interest  in  the  testator's 
estate  is  what  the  testator  gives  him. '  But  where  the  authority  of 
the  executor  is  restricted,  this  should  appear  in  the  letters 
testamentary.^  Nor  can  a  testator  appoint  one  an  executor, 
and  at  the  same  time  prohibit  him  from  administering  the 
estate ;  for  this  would  be  to  deny  him  the  essential  functions  of 
the  office.3 

§  43.  Whether  the  Executorship  passes  to  an  Executor's  Rep- 
resentatives.—  An  executor  cannot  assign  his  executorship,  the 
trust  being  pronounced  in  such  connection  a  personal  one  ;  "*  nor 
can  the  executorship  pass  upon  his  death  to  his  legally  ap- 
pointed administrator.  5  If  there  were  several  executors,  so 
that  one  at  least  still  survives  in  the  office,  no  interest  is  trans- 
missible by  the  deceased  executor.^  But  by  the  English  law, 
wherever  a  sole  executor  had  assumed  office  under  the  will,  or 
all  co-executors  had  died,  so  that  no  surviving  executor  or  suc- 
cessor could  succeed  on  his  decease  by  appointment  of  the  will, 
such  executor  was.  allowed  to  transmit  his  office  by  his  own  will 
to  his  own  executor,  by  way  of  delegating  the  confidence  orig- 
inally reposed  in  him  to  the  person  in  whom  he  himself  con- 
fided ;  and  thus  might  the  executor  of  an  executor  pass  on  the 
estate  in  a  series  of  appointments,   until  intestacy  broke  the 

'  Hill    z'.   Tucker,    13   How.    (U.   S.)  even  to  an  administrator  with  will  an- 

466.     And  see  Hartnett  v.  Wandell,  60  nexed,  in  the  absence  of  express  words 

N.  Y.  346.  in  the  grant.     lb. 

^  Barnes,  Goods  of,  7  Jur.  N.  S.  195  ;  ^2  Bl.  Com.  506.     Otherwise  se7tible 

Gibbons  v.  Riley,  7  GDI,  81.  with    an    administrator   durante  minor 

^  See  Anon.  Dyer,  3  b;  i  Wms.  Exrs.  (Etate,  for  such  an  officer  stands  in  place 

250,  n.,  showing  some  doubt  as  to  the  of   an  executor,     i    Freem.   287.     See 

effect  of  such  a  proviso ;  though  semble  comments   of    i    Wms.   Exrs.    7th   ed. 

such  an  appointment  is  inoperative.  255,  ;/.     And  see  Grant,  Goods  of,  24 

■•Bedell    v.    Constable,  Vaugh.    182;  W.  R.  929. 

Briggs,  Goods  of,  26  W.  R.  535.     Not  *"  i  Wms.  Exrs.  256,  284. 

57 


§  44  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

chain,  or  the  estate  became  finally  settled  and  distributed.' 
But  in  the  American  States  this  rule,  which  so  disregards  the 
testator's  kindred  and  their  wishes,  is  now  quite  generally 
changed  by  statute  ;  and  in  consequence,  the  duties  and  liabili- 
ties of  the  sole  executor  upon  his  decease  devolve,  not  upon  the 
executor  of  the  executor  as  such,  but  upon  an  administrator 
with  the  will  annexed  of  the  estate  of  the  original  testator, 
whose  appointment  is  made  by  a  court  upon  considerations  fav- 
orable to  those  interested  in  such  estate.-  The  executor  of  an 
executor  cannot  take  the  office,  where  the  will  itself  provides  ex- 
pressly a  different  mode  for  filling  vacancies  as  they  occur ;  ^ 
and  he  may,  of  course,  renounce  the  trust. ^ 

§  44.  Acceptance  and  Refusal  of  the  Executorship ;  Citation  of 
the  Person  named,  etc.  —  Having  considered  how  the  testator 
may  appoint  his  executor,  we  next  proceed  to  the  executor's 
decision  to  take  or  not  to  take  the  trust.  For  every  appoint- 
ment to  an  office  there  must  be  two  parties  at  least ;  and  in  the 
first  instance  no  one  is  bound  to  undertake  private  responsibili- 
ties which  another  seeks  to  fasten  upon  him.  The  office  of  ex- 
ecutor is  a  private  trust,  devolving  upon  one  individual  by  an- 

'  1  Wms.  Kxis.  7th  ed.  254-256,  and  statutes  of  an  account  presented  by  the 
cases  cited;  Smith,  Goods  of,  3  Curt,  executor  of  an  executor  against  his  tes- 
31  ;  2  Bl.  Com.  506;  (1896)  P.  129.  tator's  estate,  see  Wetzler  z/.  Fitch,  52 
This  rule  applied,  though  the  original  Cal.  638.  In  some  States  the  old  rule 
probate  was  a  limited  one.  Beer,  Goods  seems  to  be  still  followed.  Lay  v.  Lay, 
of,  2  Robert.  349.  A  married  woman  10  S.  C.  208  ;  Thomas  v.  Wood,  i  Md. 
as  executrix  might,  so  far  as  her  testa-  Ch.  296;  Crafton  v.  Beal,  i  Ga.  322; 
mentarj'  power  extended,  transmit  to  Carroll  v.  Connet,  2  J.  J.  Marsh.  195; 
her  executor.  Birkett  v.  Vandercom,  20  Fla.  58.  See  2  Dem.  327.  Where 
3  Hagg.  750.  But  it  is  essential  to  such  an  executor  who  has  neglected  to  pay 
transmission  that  the  executor  shall  a  legacy  has  died,  his  executor  is  liable 
have  probated  his  testator's  will  before  to  the  legatee  if  sufificient  assets  come 
his  own  death.  Drayton,  In  re,  4  Mc-  to  him  from  the  original  estate  or  from 
Cord,  46;  2  Wms.  Exr-s.  255,  and  cases  the  estate  of  the  first  executor.  Wind- 
cited,  sor  7>.  Bell,  61  Ga.  671. 

*  See  statutes   of   California,   Mass.,  ^  Navigation  Co.  v.  Green,  3  Dev.  L. 

Vermont,   Pennsylvania,  etc.;  Prescott  434. 

V.  Morse,  64  Me.  422  ;  Scott  v.  Fox,  14  "  Worth  v.  McAden,  i  Dev.  &  B.  Eq. 

Md.   388;   Farwell  v.  Jacob.s,  4  Mass.  199. 
634.     As    to   jurisdiction    under   such 

58 


CHAP.   I.]  APPOINTMENT    OF    EXECUTORS.  §  44 

Other's  selection,  and  not  by  act  of  the  law  ;  and  hence  the 
office  may  be  accepted  or  refused  at  discretion.' 

The  time  of  acceptance  or  refusal  of  an  executorship  is  prop- 
erly deferred  to  the  date  when  the  will  comes  into  operation  ; 
that  is  to  say,  when  the  testator  is  dead,  and  the  will  ought  to 
be  admitted  to  probate  and  some  one  undertake  the  responsibil- 
ity of  settling  the  estate.  Hence,  one's  promise  during  the  life- 
time of  the  testator  to  accept  such  trust  will  not  conclude  him.- 
Possibly  circumstances  might  show  a  consideration  given  for  such 
a  promise,  so  as  to  involve  the  party  refusing  in  a  legal  liability 
to  the  estate  for  the  breach  ;  and  if  a  legacy  was  given  him  under 
the  will  as  executor,  and  in  consideration  of  such  service  on  his 
part,  he  must  needs  forfeit  it  by  his  refusal  to  serve. ^  But  every 
presumption  favors  a  mutual  postponement  of  one's  final  deci- 
sion to  serve  until  the  contingency  of  death  happens,  and  the 
person  named  as  the  decedent's  executor  may  fitly  make  up  his 
mind  whether  to  serve  or  not,  if,  indeed,  he  be  the  survivor  and 
capable  of  serving  at  all.  And  hence,  as  a  rule,  one  may  re- 
nounce a  trust  to  which  he  is  nominated  under  a  will  without 
forfeiting  any  legacy  which  is  left  to  him  simply  as  an  individual, 
and  upon  no  manifest  requirement  that  he  shall  serve.^ 

The  executor's  acceptance  of  his  appointment  is  signified  by 
proving  the  will  in  court  and  taking  out  letters  testamentary. 5 
How  all  this  should  be  done  will  presently  appear.*^  But  so  im- 
portant is  it,  in  the  interests  of  an  estate,  that  a  dead  person's 
will  should  be  placed  promptly  upon  record,  if  he  has  left  one, 
and  his  estate  committed  for  settlement,  that  from  very  early 
times  the  ordinary  was  empowered  in  England  to  summon  any 
person  before  him  who  had  been  named  executor  under  the  will 

'  Lowry  v.  Fulton,  9  Sim.  115;  -i  Pollexfen  v.  Moore,  3  Atk.  272; 
Lewin  Trusts,  161,  162;  i  Wms.  Exrs.  Slaney 7.  Watney,  L.  R.  2Eq. 418.  The 
274.  An  executor  cannot  refuse  his  right  to  "  renounce  "  an  executorship  ex- 
office  in  part ;  he  must  refuse  entirely  ists  only  before  one  receives  letters  tes- 
or  not  at  all.  2  Roll.  Rep.  13?;  i  tamentary.  3  Uemarest  (N.  Y.)  164. 
Wms.  Exrs.  282  ;  Thornton  zf.  Winston,  See  pecuhar  right  to  retract  a  renunci- 
4  Leigh,  152.  ation  under  the  New  York  code.     lb. 

==  Doyle  V.  Blake,  2  Sch.  &  Lef.  392.  '  Lew-in  Trusts,  167  ;  3  Redf.  Wills,  2d 

3  See  Slaney  v.  Watney,  L.  R.  2  Eq.  ed.  529. 

418.  *  See  next  c. 

59 


§   46  EXECUTORS    AND    ADMINISTRATORS.  [pART   11. 

of  the  deceased,  and  by  summary  process  compel  him  to  prove 
or  refuse  the  testament ;  punishing  him  for  contempt  if  he  re- 
fused to  appear ; '  an  authority  which  has  been  transferred  to 
the  new  courts  of  probate  in  that  country,-  and  is  exercised  gen- 
erally by  courts  of  similar  jurisdiction  in  the  United  States.^ 
It  is  the  policy  of  such  statutes  to  require  the  person  thus  named 
to  decide  speedily  whether  he  will  accept  or  decline  the  trust  ; 
and  in  the  latter  event,  or  where  he  unreasonably  neglects  after 
due  citation  to  appear,  the  court  takes  heed  that  the  probate  of 
the  will  is  pursued,  and  thereupon  commits  the  representation 
of  the  testator  and  the  administration  of  his  estate  as  though  no 
such  person  had  been  named  executor  ;  or,  if  the  will  ought  not 
to  be  admitted  to  probate,  proceeds  as  in  other  cases  of  intes- 
tacy.'* By  such  procedure,  co-executors,  or  executors  in  succes- 
sion, may  be  passed  over,  and  the  associate  or  substitute  may 
be  qualified  by  the  court  ;  or,  instead,  an  administrator  with  the 
will  annexed,  or  a  general  administrator,  as  the  state  of  facts 
and  legal  consistency  may  require.^ 

§45.    The  same    Subject;   Death  equivalent  to  a  Renunciation. 

— The  death  of  the  sole  executor  named  in  the  will,  before  having 
either  taken  or  renounced  probate,  leaves  a  vacancy,  whether  the 
death  occurred  during  his  testator's  life  or  later,  which  must  be 
supplied  as  in  case  of  a  formal  renunciation.'' 

§  46.  The  same  subject ;  Refusal  of  Record ;  Constructive  Re- 
fusal or  Acceptance. —  Probate  procedure,  under  statutes  such 
as  we  have  alluded  to,  ought  readily  to  establish  the  fact  of  an 

'  See  Stats.  Hen.  8,  c.  5,  §  8,  1  Edw.  '  Where  an  executor  of  a  deceased  e.x- 

6,  c.  2,  cited   i   Wms.  Exrs.   274 ;  also  ecutor  is  the  rightful  representative  by 

Stat.  53  Geo.  3,  c.    127,  as  to  punish-  law  (see  supra,  §43),  he  may  thus  be 

ment  for  contempt  in  the  ecclesiastical  admitted  by  reason  of  the    refusal  or 

court.  neglect  of  the  co-executor.       Lorimer, 

'Act  of  1857,  erecting  the  court  of  Goods  of,  2  Sw.  &  Tr.  471  ;  Noddings, 

probate;  sup7-a,  §  14.  Goods  of,  2  Sw.  &  Tr.  15. 

^ Supra,  %  \  I.  ^Ib.     The  executor  of  the  executor 

*  Stat.  21  &  22  Vict.  c.  95,  §  16.     And  cannot  fill  the  office  as  the  law  usually 

^eft  post  as  to  probable  appointments  of  stands  at  this  day.     Supra,  §43. 
executor  or  administrator. 

60 


CHAP.    1.]  Ar'POINTMKN'l-    OI'     FiXKCUTORS.  §   46 

executor's  refusal  or  acceptance  of  his  office  in  most  instances." 
The  fact,  however,  should  be  matter  of  judicial  supervision,  and 
hence  of  judicial  record.  A  formal  renunciation  of  the  trust, 
signed  by  the  executor  named  for  it  and  filed  of  record,  will 
commonly  sufifice  for  that  purpose.  Such  a  writing  or  some  judg- 
ment of  record,  reciting  why  the  formality  was  dispensed  with, 
ought,  in  sound  probate  practice,  to  precede  the  granting  of 
letters  testamentary  or  administration  to  another.- 

With  such  preliminaries  now  regularly  pursued,  and  the  re- 
moval or  resignation  of  executors,  moreover,  being  more  readily 
procured  in  modern  probate  practice  than  when  the  distrusted 
spiritual  courts  exercised  jurisdiction,  some  of  the  old  English 
precedents  which  compelled  executors  to  serve,  to  the  detri- 
ment of  estates,  on  the  theory  that  one  had  constructively  ac- 
cepted his  office,  have  passed  into  oblivion.  It  was  formerly 
ruled,  indeed,  that  if  an  executor  had  once  administered  at  all, 
the  ordinary  had  no  discretion  to  accept  his  refusal  and  appoint 
another  in  his  stead. ^  But  the  true  theory,  for  these  days,  ap- 
pears to  be  rather  that  if  the  person  named  as  executor  under- 
takes to  administer  while  neglecting  to  prove  the  will,  to  procure 
his  letters,  and  to  quahfy  (if  so  the  statute  requires)  by  giving 
a  bond,  he  ought  to  be  treated  as  executor  only  so  far  as  to  be 
held  responsible  to  all  interested  under  the  will,  and  to  the 
court,  for  his  unauthorized  and  injudicious  acts;  that  otherwise, 
whether  by  his  renunciation,  resignation,  or  removal,  a  vacancy, 

'Statutes  are  sometimes  quite  explicit  bins  71.  Lathrop,  4  Pick.  33.  In  English 
as  to  form.  In  New  York,  for  instance,  practice,  the  person  renouncing  the 
the  writing  should  be  attested  by  two  office  takes  oath  that  he  has  not  inter- 
witnesses  and  acknowledged  or  other-  meddled  with  the  effects  of  the  de- 
wise  proved  and  filed.  Redf.  Sur.  Pr.  ceased.  But  no  such  oath  is  required 
141.  But  in  Massachusetts,  and  some  in  parts  of  the  United  States,  nor  does 
other  States,  the  instrument  is  more  like  it  appear  desirable  to  obstruct  the  issue 
a  simple  letter  to  the  judge.  English  of  letters  to  another  because  of  any  such 
practice  dispenses,  as  does  the  Ameri-  omission  to  make  oath.  See  i  Wms. 
can,  in  general,  with  the  use  of  a  seal.  Exrs.  282;  Toller,  41,  42.  Neglect  to 
Boyle,  Goods  of,  3  Sw.  &  Tr.  426.  Re-  qualify  may  be  construed  under  favora- 
nunciation  should  be  over  the  party's  ble  circumstances  into  a  refusal  to  serve, 
own  signature ;  but  in  extreme  cases  the  Uldrick  z/.  Simpson,  i  S.  C.  283. 
writing  may  be  executed  by  an  attorney.  '  i  Wms.  Exrs.  277  ;  i  Roll.  Abr. 
Rosser,  Goods  of,  3  Sw.  &  Tr.  490.  Exrs.  c.  2  ;   i    Mod.  213  ;   i   Leon.  155  ; 

-  Long  z'.  Symes,  3  Hagg.  776  ;    Sicb  1  Salk.  308. 

61 


§  46  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

if  desired  by  himself  or  desirable  on  other  grounds,  should  be 
declared."  Yet,  if  the  executor  thus  administering  has  acted  in 
good  faith,  with  good  excuse  and  not  injuriously,  and  desires  to 
fully  qualify  for  the  ofifice,  and  protect  his  acts,  this  is  a  differ- 
ent thing ;  we  speak  only  of  a  constructive  acceptance,  such  as 
binds  one  legally  to  continue  in  office  against  his  own  will  and 
where  the  court  considers  it  detrimental  to  the  interests  of  the 
estate.  Renunciation  of  the  trust,  according  to  modern  probate 
practice,  is,  as  nearly  as  possible,  referred  to  the  date  of  pro- 
ceedings for  probate  of  the  will,  and  made  tantamount  to  a  re- 
fusal to  qualify  in  the  probate  court. - 

One  who  has  intermeddled  with  the  estate  of  the  deceased, 
like  an  executor  dc  son  tort,  may,  however,  as  it  is  held,  be  de- 
barred at  the  discretion  of  the  court  from  renouncing  the  trust 
and  its  responsibilities  afterwards,  and  claiming  that  he  has  not 
intended  to  serve;  for  the  right  to  elect  on  his  part,  whether  to 
accc])t  or  refuse  the  office,  may  be  determined  by  acts  and  con- 
duct on  his  own  part  amounting  to  an  estoppel,  irrespective  of 
formal  proceedings  in  probate.  Hence,  the  rule,  that  whatever 
the  executor  does  with  relation  to  the  estate  of  his  testator, 
showing  his  intention  to  assume  the  trust  confided  to  him,  may 
be  alleged  as  evidence  that  he  had  already  elected  to  take  upon 
him  the  executorship.^  As  where  he  takes  possession  and  con- 
verts goods  of  the  testator's  estate  to  his  own  use,  claiming  that 
they  belong  to  the  estate;-*  (otherwise,  however,  where  he  has 
claimed  them  as  his  own,  since  this  would  show  an  intention  on 
his  ))art  inconsistent  with  administering; 5)  and  where  too  he 
administers  on   such    goods,   or   under  some  misapprehension 

'On  general  principles  of  equity  as  cancelled.  Badenach,  Goods  of,  3  S\v. 
well  as  at  law,  such  a  person  is  liable  to  &  Tr.  465.  But  the  oath  of  non-inter- 
others  for  his  acts.  Doyle  v.  Blake,  2  meddling  is  not  part  of  the  renuncia- 
Sch.  &  Lef.  237 ;  Parsons  v.  Mayesden,  tion  in  American  as  in  English  practice. 
I  Freem.  151  ;  Reed  z/.  Truelove,  Ambl.  ^i  Wms.  Exrs.  279;  Godolph.  pt.  2, 
417.  And  see  post  as  to  the  executor  c.  8,  §§  i,  6;  Raynor  v.  Green,  2  Curt. 
de  son  tort.  But  parties  aggrieved  have  248 ;  Van  Home  v.  Fonda,  5  John.  Ch. 
not  the  security  of  a  bond,  etc.,  to  which  388 ;  Vickers  v.  Bell,  4  De  G.  J.  &  S. 
probate  law  may  have  entitled  them.  274.     As  to  the   executor  de  son  tort, 

^  Renunciation   held  invalid  in   Eng-  see  c.  post. 

lish   practice  where  one  had  intermed-  '•lb.;  Wms.  Exrs.  279. 

died  ^^^th  the  effects,   and  the   record  "  Bac.  Abr.  Executors,  P2,  10. 

62 


CHAP.   I.]  APPOINTMENT    OF    EXECUTORS.  §   47 

takes  a  stranger's  goods  for  that  purpose,"  collects  debts,  pays 
claims  and  legacies,  or  even  represents  himself '  as  thus  pre- 
pared to  act  on  behalf  of  the  estate.  On  the  other  hand,  a 
constructive  refusal  has  sometimes  been  inferred  by  acts  and 
omissions  of  the  person  named  executor.  Thus,  it  is  held  that 
the  executor's  neglect  for  a  long  time  to  take  out  letters  and 
prove  the  will,  when  he  might  have  done  so,  amounts  to  refusal.^ 
And  long  delay  to  take  such  steps  ought  thus  to  be  construed, 
in  the  interest  of  all  concerned,  where  there  has  been  mean- 
while no  intermeddling  with  the  estate  on  his  part,  and  he  has 
not  suppressed  the  will.  Again,  it  may  be  presumed,  where 
the  same  party  was  named  executor  and  trustee  under  the  will, 
and  has  qualified  and  acted  in  the  latter  capacity  but  not  in  the 
former,  that  he  accepted  the  one  trust  and  declined  the  other, 
and  vice  versa .'^ 

§  47.  The  same  Subject  ;  Constructive  Acceptance  or  Refusal 
not  favored  in  Modern  Probate  Practice.  —  On  the  whole,  how- 
ever, theories  of  constructive  refusal  or  acceptance  are  hardly 
consistent  with  our  modern  probate  practice  ;  they  may  serve  to 
establish  presumptions  where  public  records  are  lost,  or  to  facil- 
itate the  course  of  justice  in  dealing  with  an  intermeddler  or  an 
indifferent  nominee,  according  as  the  interests  of  creditors  and 
legatees  may  demand.  Under  both  English  and  American 
statutes,  at  the  present  day,  summary  proceedings  are  available 
in  the  court  of  probate  jurisdiction  to  compel  the  person  named 

'Bac.  Abr.  Executors,  E,  10;   i  Wms.  ■*  See  Williams   v.  Gushing,    34   Me. 

Exrs.  279.  370 ;  Deering  v.  Adams,  37    Me.    264. 

^  Long  V.  Symes,  3  Hagg.  771  ;  Vick-  A  judge  of  probate  named  as  one  of  the 

ers  V.  Bell,  4  De  G.  J.  &  S.  274.     But  executors  under  a  will,  shows,  by  acting 

assisting   a  co-executor  who  has  been  as  judge  in  admitting  the  will  to  probate 

duly  appointed,  as  any  attorney  or  agent  and  qualifying  the  co-executors,  that  he 

might  do,  is  not  tantamount  to  electing  declines  to  serve.     Ayres  v.  Weed,  16 

to  serve  as  an  executor.     Orr  v.  New-  Conn.  291.     Refusal  to  act  as  executor 

ton,  2  Gox,  274.     But  cf.    i    P.  Wms.  may  be  imphed  without  record  evidence 

241,  note  to  6th  ed.,  cited  in  i  Wms.  or    express    declaration.     Solomon    v. 

Exrs.  280.  Wixon,    27    Gonn.    291  ;    Thornton   v. 

3  As  for  twelve  months.     Bewacorne  Winston,  4  Leigh,  152;  Ayres  v.  Cline- 

w.  Carter,  Moore,  273.  For  twenty  years,  fetter,  20  111.  465  ;  Uldrick  z/.  Simpson, 

Marr  v.  Play,  2  Murph.  85.  i  S.  C.  283. 

63 


§   48  EXECUTORS    ANO    ADMINISTRATORS.  [I'AKT   II. 

as  executor  to  prove  the  will  and  qualify,  and  in  case  of  his  un- 
reasonable neglect  to  appear  to  commit  the  trust  to  others 
just  as  if  he  had  formally  declined.'  Such  proceedings  render 
acceptance  and  refusal  of  an  executorship  matter  of  public 
record,  and  discourage  legal  inferences  from  acts  and  conduct 
of  the  nominee  in  pais.  Responsible  as  an  executor  may  be  for 
his  acts  and  negligence  respecting  the  trust  before  he  has  been 
duly  qualified,  modern  policy  disinclines  to  force  one  to  serve  as 
executor  against  his  will  or  regardless  of  the  true  welfare  of  the 
estate,  provided  there  are  others  at  hand  competent  and  ready 
to  assume  the  management.  Such  trusts,  in  the  United  States 
at  least,  being  now  compensated,  the  office  of  executor  becomes 
far  less  burdensome  than  in  old  times  when  one  was  selected  to 
perform  these  pious  duties  as  a  last  favor  to  his  dying  friend. 
And  while,  as  a  matter  of  general  law,  one  who  has  proved  the 
will,  received  letters  testamentary,  and  fully  qualified  in  court, 
cannot  afterwards  renounce  the  executorship  of  his  own  accord 
or  divest  himself  of  its  duties,^  our  local  statutes  now  provide 
that  executors,  as  well  as  administrators,  may  afterwards  resign 
or  be  removed  from  office,  when  in  the  discretion  of  the  probate 
court  it  appears  proper.^  One's  renunciation  has  been  accepted 
in  some  instances  after  probate  of  the  will  but  before  qualifica- 
tion ;  •»  and  if  a  bond  with  sureties  must  be  furnished  under  the 
local  statute,  the  inconvenience  of  furnishing  a  bond  such  as 
the  court  requires  may  furnish  good  reason  for  renouncing  at 
the  last  moment. 

§  48.     Execvitor's    Right   to    renounce    not  to  be  exercised    cor- 
ruptly, nor  for  Sinister  Objects. — An  agreement  made  with   per- 

'  See  21  &   22   Vict.   c.  95,  §    16;    i  to  resignation  and  removal  of  executors 

Wms.  Exrs.  275.  and  administrators,  see  c.  6,  post.     See 

^  Sears  ?'.  Dillingham,  12  Mass.  358  ;  also  Newton  v.  Cocke,  10  Ark.  169. 

Washington  v.  Blunt,  8  Ired.  Eq.  253.  "Miller  v.  Meetch,  8  Penn.  St.  417; 

3  Thus   is   it    in    Massachusetts    and  Davis  v.   Inscoe,  84   N.  C.  396.     The 

New   Hampshire.      Thayer  v.   Homer,  particular  form  of  renunciation  is  not 

II  Met.  104;  Morgan  v.  Dodge,  44  N.  important.     Commonwealth  v.  Mateer. 

H.  258.     Nor  need  the  appointment  of  16   S.  &   R.  416.     But  the  New   York 

a  successor  await  the  settlement  of  the  statute  requires  renunciation  to  be  for- 

outgoing    executor's    accounts.      Har-  mally  executed  in  the  presence  of  wit- 

rison  v.  Henderson,  7  Heisk.  315.     As  nesses.     2  N.  Y.  R.  S.  §  370. 

64 


CHAP.  I.]  appointmp:nt  of  executors.  §  50 

sons  in  interest  before  a  testator's  death,  and  contrary  to  his 
expressed  wishes,  by  one  named  as  executor,  to  renounce  the 
executorship  for  a  stated  consideration,  is  contrary  to  public  pol- 
icy and  void.'  Nor  has  one  named  as  executor  any  right,  by 
mispleading  or  acquiescence  in  the  unfounded  claim  of  another, 
to  change  the  lawful  course  of  substitution  or  administration  in 
his  stead.-  In  general,  any  agreement  for  a  consideration  to 
renounce  an  executorship  is  illegal,  and  a  court  of  equity  will 
refuse  to  enforce  it.^ 

§  49-    W'hether  au  Executor   renouncing   may  exercise  a  PoTver. 

— Williams,  in  his  excellent  work  on  executors  and  administra- 
tors, doubts  whether,  where  a  power  is  given  to  executors,  they 
may  renounce  probate,  and,  at  the  same  time,  exercise  the  power, 
unless  the  power  was  conferred  upon  them  personally  and  with- 
out reference  to  the  office  of  executor.^  But  he  admits  that 
some  eminent  authorities  point  to  the  contrary  conclusion.^ 

§  50-  Retraction  after  a  Renunciation  ;  Subsequent  Appointment 
of  the  Executor. — Where  an  executor  upon  his  own  petition  has 
been  excused  from  the  office,  and  has  formally  renounced  the 
trust,  he  cannot,  after  the  issuance  of  letters  to  another,  retract 
his  renunciation  at  pleasure.  His  election  once  made,  is,  for 
the  time  being,  irrevocable.''  But  a  fresh  opportunity  may  often 
be  afforded  him  to  take  the  trust,  should  a  vacancy  in  the  office 

"  Staunton  v.  Parker,  26  N.  Y.  Supr.  may  therefore  have  the  power  to  sell 
55.  coitferred  upon  him  as  something  not 
^  Nelson  v.  Boynton,  54  Ala.  368.  annexed  to  the  will  or  his  acceptance  or 
^EUicott  z/.  Chamberlin,  38  N.  J.  Eq.  declination  of   the    executorship.     Mr. 
604.  Williams's    distinction    appears,    there- 
"•Wms.  Exrs.  286,  287.  fore,  to  this  writer  a  just  one  in  the 
'  Sugden  Powers,  138,  6th  ed.;  2  Prest.  sense  that  the  testator's  intention  should 
Abstr.  264.     Perkins,  No.  548,  suggests  be  resorted  to  in  such  a  case, 
the  point  of  distinction  as  Mr.  Williams  *  Thornton,    Goods    of.    Add.    273; 
has  taken  it.     And  see  Keates  v.   Bur-  Trow  v.  Shannon,  59  How.  (N.  Y.)  Pr. 
ton,   14  Yes.  434, /«-  Sir  Wm.  Grant.  214.     The  old  practice  was  more  favor- 
It  should  be  admitted  that  one  who  is  able  to  permitting  those  who  had  once 
executor  or  administrator  under  a  will  refused  to  come  in  afterwards  and  act. 
has  by  no  means  the  power  of  seUing  Wms.  Exrs.  284 ;  4  M.  &  Gr.  814,  per 
the  testator's  real  estate,  by  inference.  Tindal,  C.  J. 
See  Clark  t.  Tainter,  7  Cush.  567.     One 

5  65 


§   50  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

afterwards  occur,  especially  if  a  new  state  of  things  arises.  As, 
where  the  co-executor  named  under  the  will  qualified  alone  and 
was  afterward  removed  for  statute  cause,  or  died  ; '  or  in  case 
the  person  renouncing  in  the  first  instance  was  named  sole  ex- 
ecutor and  sole  legatee  in  the  will,  and  administration  with  the 
will  annexed  had  been  granted  upon  his  renunciation  to  one  of 
the  next  of  kin  who  presently  died  insolvent  and  intestate  ;  ^  or 
where  the  appointed  person  presently  absconded.-^  In  the  first 
instance,  letters  of  administration  never  having  issued  before 
the  executor's  retraction  took  place,  letters  testamentary  would 
be  properly  issued  to  him  ;  but,  in  the  second,  administration 
has  once  been  granted,  and  consequently  the  executor  prop- 
erly takes  instead  administration  de  bonis  non,  with  the  will 
annexed.  Administration  with  the  will  annexed  having  once 
been  duly  granted,  in  fact,  there  would  be  no  further  opportu- 
nity left  to  the  renouncing  party  to  qualify  as  executor ;  and 
yet,  under  the  broad  discretion  of  the  court,  where  a  new  ad- 
ministrator upon  an  unadminislered  estate  has  to  be  appointed, 
a  sole  legatee  may  well  be  pronounced  in  such  an  exigency  the 
best  suitable  for  the  trust,  and  be  appointed  to  the  vacancy  ac- 
cordingly as  an  administrator.'* 

In  practice,  an  executor's  retraction  of  his  refusal  has  been 
treated  with  considerable  indulgence,  so  long  as  no  other  grant 
of  letters  supervened.  Thus,  upon  consent  of  all  the  parties 
interested  (though  not  otherwise)  an  executor  who  had  refused 
the  trust  in  order  to  become  an  admissible  witness  for  sustain- 
ing the  validity  of  the  will,  was  in  the  EngHsh  spiritual  court 
regularly  allowed  to  withdraw  his  refusal  after  the  suit  was  over 
and  receive  letters  testamentary ;  ^  palpable  evasion,  though 
this  might  be,  of  the  rule  which  forbade  interested  persons  to 
testify  in  court.     And  even  supposing  letters  of  administration 

'  I  Robert.  406  ;  Codding  w.  Newman,  Wms.  Exrs.  283.     Cf.  Thornton  v.  Win- 

63  N.  Y.  639 ;  Perry  v.  DeWolf,  2  R.  I.  ston,  4  Leigh,  152. 

103 ;  Maxwell,  In  re,  3  N.  J.  Eq.  611;  =1  Wms.  Exrs.  7th  ed.  283 ;  McDon- 

Davis  V.  Inscoe,  84  N.  C.  396.  nell  v.  Prendergast,  3  Ilagg.  212,  216; 

^Wheelwright,  Goods  of,  L.  R.  3  P.  D.  Thompson  v.  Dixon,  3  Add.  272.     Re- 

71.  traction  allowed  at  any  time  before  the 

'Siiles's  Goods,  (1898)  P.  12.  grant  of  letters  to  another.     Robertson 

'  See  c.  post  as  to  administration  ;   1  -■.    McGloch,  1 1  Paige,  640. 

66 


CHAl'.    l.J  APPOINTMENT    OF    EXECUTORS.  §   5  I 

to  have  issued,  if  this  were  upon  some  misapprehension  or  error 
deserving  correction,  or  for  some  temporary  purpose  not  incon- 
sistent with  probate,  and  before  the  executor  can  be  said  to  have 
refused  the  trust,  this  party  may  have  the  administraticjn  re- 
voked or  superseded  and  letters  testamentary  issued  to  him ; 
as,  for  instance,  should  a  will  turn  up  after  the  grant  of  letters 
as  upon  an  intestate's  estate,  or  after  a  special  administration.' 
This  power  of  retraction  within  such  limits  is  matter  of  right, 
and  not  of  mere  privilege.^ 

§  5  ^  •  Renunciation  -where  Several  Executors  are  named.  — 
Where  two  or  more  are  named  co-executors  under  a  will,  all 
must  duly  have  renounced  or  have  defaulted  upon  citation  to 
the  same  result,  before  the  will  can  be  treated  as  in  effect  a 
will  without  an  executor,  so  as  to  be  properly  committed  to  an 
administrator  with  the  will  annexed.  The  refusal  of  one  co- 
executor  does  not  exclude  the  others,  nor  prevent  succession, 
substitution,  or  a  sole  execution  of  the  trust,  as  the  testator's 
wishes  or  the  just  interests  of  the  estate  may  require.  And 
although,  as  we  have  already  indicated,^  a  co-executor  who  has 
renounced  the  office  may  afterwards  retract  the  renunciation  so 
as  to  succeed  to  a  vacancy  should  one  occur  (for,  here,  the  situa- 
tion of  the  trust  having  changed,  one  does  not  stultify  himself 
by  recalling  his  refusal),  the  better  practice  allows  the  co-exec- 
utor's refusal  to  slumber  on  unless  he  chooses  to  arouse  it  before 
the  opportunity  be  past ;  *  which  opportunity  closes  where  other 


'  Taylor  z'.  Tibbatts,  13  B.  Mon.  177;  as  such  who  does  not   respond  to  the 

2  Wms.  Exrs.  283.     Under  the  old  and  citation,  but  neglects  inexcusably  to  ap- 

defective  English  practice  in  such  mat-  pear  and  perform  his  duty,  as  having 

ters,  an  executor  who  had  neither  actu-  forfeited  all  right  to  the  executorship, 

ally   nor  constructively  renounced    his  21  &  22  Vict.  c.  95,  §  16. 

appointment,  but  had  merely  defaulted  -Casey  v.  Gardiner,  4  Bradf.  13.     Cf. 

to  come  in  on  citation  and  prove  the  as  to  administrators  having  precedence, 

will,  might  at  any  future  time  appear  to  §112. 

prove  the  will,  obtain  letters  testamen-  ^  Supra,  §  50. 

tary,  and  have  the  administration    re-  •»  Judson  v.   Gibbons,  5    Wend.  224. 

voked.     I   Leon.  90;  Godolph.  pt.  2,  c.  It  was  formerly  thought  that  the  grant 

31,  §3.     But  the  policy  of  later  legisla-  of  administration  would  be  void  upon 

tion  is  (requiring  probate  of  the  will  as  such  a  vacancy  in  the  office  unless  the 

of  course)  to  treat  the  executor  named  executor  surviving  renounced  the  trust 

67 


§   52  EXECUTORS    AND    ADMINISTRATORS.  [I'AKT   II. 

letters  are  granted.'  One  of  the  co-executors  having  renounced, 
letters  will  be  granted  to  the  remaining  executor/  and,  unless  it 
appears  to  the  court  imprudent,  to  him  alone. 

§  52.  Executors,  how  appointed  by  the  Court;  Letters  Testa- 
mentary.—  This  chapter  has  shown  us  that  executors  are  ap- 
pointed, or  rather  designated,  by  the  testator's  will.  The  full 
appointment,  according  to  modern  English  and  American  prac- 
tice, comes  from  the  court  of  probate  jurisdiction,  which,  recog- 
nizing and  confirming  the  testator's  selection,  clothes  the  exec- 
utor therein  named  with  plenary  authority  by  issuing  letters 
testamentary  to  him.  Letters  testamentary  are  granted  usually 
in  connection  with  decreeing  the  probate  of  the  will  ;  and,  as  our 
next  chapter  will  show,  one's  last  testament  should  be  presented 
for  probate,  whether  the  executor  named  be  willing  to  serve  and 
competent  for  the  trust  or  the  reverse.  A  will  is  not  necessarily 
executed  by  an  executor,  nor  dependent  for  enforcement  of  its 
provisions  upon  any  survivor  of  the  deceased.  Hence,  accord- 
ing to  our  present  probate  procedure,  an  executor  derives  his 
office  (i)  from  a  testamentary  appointment,  which  (2)  is  con- 
firmed by  a  decree  of  the  probate  court,  and  the  issue  of  letters 
testamentary  to  him  accordingly. 

once  more  in  due  form.     Bin  this  super-  filing  a  bond,  so  tliat  the  retraction  of 

serviceable  regard  for  a  testator's  wishes  the  executor  who  renounces  is  filed  just 

is  not  approved  by  the  later  and  sounder  before  the  co-executor  finally  qualifies 

authorities,  which  hold  that  the  surviv-  and   takes    his    letters,    the    retraction 

ing  executor  must  come  in,  retract  his  comes  too  late.     Jewett  v.  Turner,  172 

•enunciation,  and  ask  to  be  appointed  Mass.  497. 

before     administration     de    bonis    fion         ^Miller  v.   Meetch,  8    Penn.  St.  417. 

passes   the   seals,   if  he  would   supply  An   executor  who   renounces,    being  a 

the  vacancy,     i    Robert.  406 ;   i  Wms.  creditor  of  the  estate,  is  not  debarred 

Exrs.  285  ;  Venables  z/.  East  India  Co.,  of  the  usual  remedies  of  creditor.      Raw- 

2  Ex.  633.  linson  v.  Shaw,  3  T.  R.  557. 
'  Even  though  delay  should  occur  in 

68 


CHAPTER    II. 


PROBATE    OF    THE     WILL. 


§  5  3.  Duty  of  producing  the  Will  ;  Fundamental  Importance 
of  determining  Testacy  or  Intestacy,  etc.  —  The  first  and  most 
pressing  duty  of  every  executor  nominated  as  such  is  to  have 
the  will,  by  virtue  of  which  he  claims  the  rights  of  representa- 
tive, admitted  to  probate.  And  so  fundamental  to  jurisdiction 
upon  the  estate  of  a  deceased  person  is  it  to  ascertain  whether 
such  person  has  died  testate  or  intestate,  and  if  testate,  what 
was  his  last  will  and  testament,  what  instrument,  in  truth, 
made  and  subscribed  by  him  with  due  formalities  while  capable 
and  free  to  exercise  the  momentous  power  of  testamentary  dis- 
position, embodied  his  latest  wishes  ;  so  important  is  it  to  know 
whether  he  has  chosen  in  fact  to  have  his  property  settled  and 
distributed  according  to  his  own  scheme,  or  to  let  the  law  of 
intestacy  operate,  that  the  personal  claim  of  this  or  that  indi- 
vidual to  execute  or  administer  the  estate  is  but  secondary  in 
importance. 

Hence  the  will,  whoever  may  be  its  temporary  custodian, 
should  be  properly  produced  in  court  after  the  testator's  death, 
in  order  that  its  validity  may  be  finally  determined,  and  inci- 
dentally the  rights  of  all  persons  claiming  a  title  and  interest  in 
the  decedent's  estate.  The  executor  named  in  the  instrument 
is  the  most  suitable  person  for  such  temporary  custody  and 
formal  production.  But  wills  are  sometimes  received,  under 
appropriate  statutes,  from  such  as  may  have  chosen  during  life- 
time to  deposit  the  same  confidentially  in  the  probate  registry  ; 
or  the  instrument  is  committed  to  the  care  of  an  attorney,  or 
some  confidential  friend  ;  or  it  is  lodged  among  one's  effects  or 
business  papers,  so  that  some  member  of  the  famil)',  a  partner, 
or  a  business  clerk,  may  happen  first  to  light  upon  it  ;  or  per- 
chance it  may  have  been  carelessly  or  artfully  placed  where 
only  accident  is  likely  to  discover  it,  and  the  finder  may  prove  an 

69 


i^    54  EXFXUTORS    AM)    ADMINISTRATORS.  [PART  II. 

Utter  Stranger.  In  any  and  all  of  these  situations,  and  under 
whatever  other  circumstances  the  will,  or  what  purports  to  be 
the  will,  of  a  party  deceased  may  be  found,  the  custodian,  come 
he  casually  or  purposely  into  possession,  is  bound  to  produce 
and  surrender  it  in  such  a  manner  that,  in  all  reasonable  expec- 
tation, it  shall  duly  and  speedily  be  brought  before  the  proper 
tribunal  having  probate  jurisdiction  of  the  estate.  He  must 
not  clog  the  surrender  of  that  instrument  with  conditions  of  pe- 
cuniary reward  ;  he  must  not  connive  with  others  at  its  sup- 
pression or  concealment ;  he  must  not  act  as  though  the  paper 
belonged  to  himself,  or  to  any  particular  person  interested  in 
the  estate,  or  even  to  the  executor  named  himself ;  but  treat  it 
as  a  document  which  involves  the  rights  of  all  concerned  in  the 
estate,  should  either  its  validity  or  invalidity  be  established,  and 
of  those,  besides,  who  should  properly  manage  and  settle  the 
estate  in  one  contingency  or  the  other,  as  an  instrument  whose 
possession  for  the  time  being  casts  upon  him  a  perilous  respon- 
sibility. Most  custodians  may  well,  doubtless,  surrender  the 
paper  to  the  executor  named  therein  ;  but  the  duty  does  not 
cease  here  ;  and  by  fair  and  seasonable  notice,  if  prudence  and 
good  faith  so  require,  to  the  nearest  relatives  of  the  deceased, 
or  others  interested,  and  giving  the  fact  that  the  instrument 
has  been  found  due  publicity,  one  should  procure  what  the 
policy  of  the  law  now  requires,  its  production  for  probate  be- 
fore the  proper  tribunal.' 

§  54.  Procedure  against  Persons  suspected  of  secreting,  de- 
stroying, etc.,  the  "Will. —  Local  statutes  in  modern  times  quite 
generally  affix  criminal  penalties  to  the  intentional  suppression, 
secretion,  or  destruction  of  a  dead  person's  will  by  any  one  ac- 
quiring possession  thereof.-  They  provide  also  for  summary 
proceedings  in  the  jirobate  court  against  an)'  jK-rson  having  or 
suspected  of  having,  or  knowing  as  to  the  whereabouts  of  such 
an  instrument ;  such  proceedings  being  in  the   nature  of  an  in- 

'  An  attorney  or    solicitor,  the  cus-     Symes,  Turn.   &  Russ.   87.     And  see  3 
todian   of   a    -will,    cannot     refuse    its     Redf.  Wills,  3d  ed.  1,2. 
surrender  for  probate  upon  any  claim         '  .Smith     IMob.     Tract.    (Mass.)     59; 
of    a   lien    for    unpaid   fees.     Halch    ?■.     .Stebbins  r.  f  .athiop,  4  Pick.  33. 

70 


CIlAl'.    1 1.  I  PROBATK    OF    THK    WILL.  §   55 

c|ui.sition,  so  that  one  is  cited  to  appear  and  either  surrender  the 
will  or  purge  himself  by  answering;-  under  oath  such  lawful  ques- 
tions as  may  be  propounded  in  the  premises.  Independently  of 
such  legislation,  according  to  correct  reasoning,  every  court 
of  competent  probate  jurisdiction  has  a  lawful  authority,  infer- 
able from  its  peculiar  functions,  to  summon  parties  spontane- 
ously or  upon  the  petition  of  any  person  interested,  for  the  pur- 
pose of  compelling  production  and  investigating  the  where- 
abouts of  instruments  which  ought  to  be  offered  before  such 
court  for  probate,  and  may  commit  for  contempt  those  who  re- 
fuse to  obey  its  mandate.'  Where  one  is  shown  to  have  had 
the  custody  of  a  will,  he  is  presumed  to  retain  it  and  must  clear 
himself  upon  oath,  or  else  be  held  responsible  for  its  non-ap- 
pearance ;  and  any  person  having  knowledge  as  to  the  existence 
or  place  of  deposit  of  the  will  ought  to  give  his  testimony 
freely.^ 

§55.  Death  of  Testator ;  its  Effect  upon  his  Will.  —  Every 
instrument  purporting  to  be  one's  last  will  and  testament  has 
(except  in  a  few  special  instances  stated  in  the  books)  but  an 
inchoate,  incomplete  and  ambulatory  operation  during  the  life 
of  the  person  who  makes  it  ;  changes  may  be  made  by  his  cod- 
icil afterwards  ;  moreover,  he  may  cancel  and  destroy  such  instru- 
ments at  pleasure,  execute  a  later  will,  or  conclude  to  dispense 
with  a  will  altogether  ;  provided  only  that  he  remains  of  sound 
mind  and  capacity,  and  exercises  his  unfettered  choice  concern- 
ing the  final  disposition  of  his  estate.  But  the  moment  one 
dies,  the  instrument  or  instruments,  if  any,  which  he  has  left 
duly  executed,  constitute  his  last  will  and  testament,  and  ac- 
quire conclusive  force  and  operation  as  such  ;  and  to  prove 
and  establish  what  purports  to  be  such  last  will  and  testament, 

'  3  Redf.  Wills,  3d  ed.  6  ;  Cas.  temp,  case,  or  to  the  executors  named  in  the 

Lee,    158;   Swinb.  pt.  6,    c.    12,  pi.   2;  -vvill.     For   neglect    to    do   so,    without 

Brick's  Estate,  15  Abb.  Pr.  12.  reasonable  cause  after  being  cited  for 

-  A    Massachusetts    statute    requires  that  purpose,  he  may  be  committed  to 

every  custodian  of  a  will,  within  thirty  jail,   and  will  be  held  further  liable  in 

days  after  the  notice  of  the  death  of  damages  to  any  party  aggrieved.     Mass. 

the  testator,   to  deliver   it  into  the  pro-  Gen.  Stats,  c.  92,  §  16. 
bate  court  which  has  jurisdiction  of  the 

71 


§   55  EXECUTORS    AXD    ADMINISTRATORS.  [I'ART  II. 

SO  that  it  may  fully  oj^erate,  or,  more  generally,  to  ascertain 
whether,  in  a  legal  sense,  any  last  will  and  testament  was  left  at 
all,  becomes,  in  the  first  instance,  the  peculiar  province  of  the 
local  probate  court  of  his  last  domicile;  and,  besides,  the  full 
appointment  with  qualification  of  the  person  or  persons  who, 
according  as  he  died  testate  or  intestate,  may  be  entitled  to 
manage  and  settle  the  estate  and  represent  the  deceased.' 

The  fact  of  the  testator's  death,  superadded  to  that  of  last 
domicile,^  is  thus  essential  to  our  modern  probate  jurisdiction. 
Death  is  frequently  a  fact  so  well  known  in  the  neighborhood, 
that  the  court  requires  no  proof  ;  often  it  is  assumed  from  the 
allegations  of  the  petitioner  for  probate  and  letters  ;  and  famil- 
iar rules  of  evidence  may  be  adduced  as  to  presumptions  of 
death  after  a  long  absence,  or  disappearance,  without  being 
heard  from.^  But  presumptions  of  death  are  only  for  conven- 
ience ;  and  if  the  person  on  behalf  of  whose  estate  proceedings 
were  taken  had  not  actually  died,  probate  of  the  will  may  be 
afterwards  annulled  ;  inasmuch  as  there  is  no  jurisdiction  in  the 
court  over  the  projierty  of  the  living,''  nor  positive  assurance  that 
a  particular  will  embodies  the  maker's  final  disposition  of  his 

'3   Redf.  Wills,  3d  ed.   i,  2;    Wms.  ing   was  simply  precautionary   against 

Exrs.  7th  ed.  6,  10,319.     We  have  seen  loss  of   the  instrument  and  could  not 

that  one's  will  may  be  received  for  de-  impair  the  testator's    right  to  alter  or 

posit  under  suitable  Enghsh  and  Amer-  subsequently  revoke.     See  Swinb.  pt.6, 

ican  statutes,  at  the  regi.stry  of  wills,  §  13,  pi.  i.     A   Michigan  statute  which 

while  he  is  alive.    Supra,  §  53 ;  2  Wms.  attempted  to  provide  for  an  anle  mor- 

Exrs.  319.    Such  statutes,  of  course,  only  tcin  probate  was  lately  pronounced  in- 

provide  a  convenient  place  of  deposit,  operative.    Lloyd  ?■.  Chambers,  56  Mich. 

The  testator,  having  the  right  to  revoke,  236. 
may  withdraw  the  will,  whenever  he  de-         'Supra,  §  15. 

sires,    from    such    custody,    during    his  ^See  stipra,  pt.    i  ;    2    Greenl.   Evid. 

lifetime.  §  278,  as  to  presumptions  and  proof  of 

The  earlier  English   books,  however,  death.     Death   is  presumptively  estab- 

make  mention  of  proceedings   which  a  lished  as  a  fact   l)y  production  of  the 

living  testator  might  invoke  on  his  own  probate  of  one's  will  before  a  surrogate, 

petition ;  the  effect  of  which  was  to  have  and   the   proceedings    had    upon    such 

the  will    duly  recorded  and  registered  probate.     Carroll  v.  Carroll,  6  Thomp. 

among  other  wills.     But  proof  so  ad-  &  C.  294.     As  to  evidence  raising  tlie 

duced  had  not  the  effect  of  probate,  nor  presumption  of  death,  see  (1898)  P.  143  ; 

coxild   authentication  under  .seal    issue  (1897)  P.  17;  (1896)  P.  8,  151. 
during  the  testator's  life.    The  proceed-         *D'Anisement  z'.  Jones,  4   Lea,  251. 

72 


CHAP,  n.]  PROBATE  OF  THE  WILL.  §  56 

property,  nor  certainty  where  he  may  actually  reside  at  the  time 
of  his  death.' 


§  56.  HoAv  soon  after  the  Testator's  Death  should  the  Will  be 
presented  for  Probate.  —  The  time  after  the  testator's  death 
when  his  will  should  be  presented  for  probate  must  depend 
somewhat  upon  sound  discretion  ;  distance,  the  facility  of  pro- 
curing witnesses  and  needful  testimony,  and  the  convenience  of 
the  executor  and  parties  interested,  being  circumstances  of  no 
little  consequence  in  this  connection.  Decency  requires  delay 
until  after  the  burial  has  taken  place ;  but,  as  a  rule,  the  will  of 
a  deceased  person  should  be  produced  for  public  custody  as  soon 
after  the  funeral  as  possible ;  whether  this  be  in  open  court,  or 
by  first  filing  the  instrument  with  the  register,  in  order  that 
citation  may  issue  for  probate  later  at  some  convenient  court 
day,  as  in  conformity  with  local  practice.  The  opportunity  for 
a  postponement  of  the  judicial  hearing  for  probate  will  suffice 
for  most  purposes  of  further  delay  ;  production  of  the  instru- 
ment by  its  individual  possessor  affording  to  the  court  the  need- 
ful primary  pledge  of  good  faith.  For  delaying  production  of 
the  instrument  is  one  thing,  and  delaying  proof  of  the  authen- 
ticity and  the  issuing  of  letters  another.  English  and  American 
statutes  accord  in  affording  reasonable  time  and  opportunity  to 
all  interested  in  this  latter  respect  ;  while,  as  to  the  former,  dis- 
couraging every  species  of  delinquency.- 

But,  however  late,  from  one  cause  or  another,  probate  may 

'  I  Bl.  Com.  502.     "  Nam  omne  tes-  be  produced  from  private  custody,  and 

tamentum  morte  consummatum  est ;  et  forbidding  all  intemieddling  w-ith  an  es- 

voluntas  testatoris  est  ambulatoria  us-  tate  without  a  judicial  appointment,  all 

que  ad  mortem."     Co.  Litt.  112.  tend  to  hasten  the  presentment  of  the 

^  English  practice  requires  an  explana"-  will  for  probate.      The  Eng.   Stat.   55 

tion  of  the  delay  where  one  seeks  pro-  Geo.  III.  c.   184,  imposes  a  penalty  for 

bate  or  administration,  after  the  lapse  administering   Adthout    proving  within 

of  three  years    from   the  death  of  the  six  months,    i  Wm.s.  Exrs.  319.    Thirty 

deceased,     i  Wms.  Exrs.  320.     On  the  days' delay  after  knowledge  of  the  death 

other  hand,  no  probate  or  letters  shall  in   producing  the  decedent's  will  is  all 

issue  within  seven  days  from  the  death  that  the  policy  of  some  American  stat- 

of  the  party  deceased.     lb.     American  utes  appears  to  tolerate.     Mass.  Gen. 

practice  and  the  tenor  of  .statutes,  Eng-  Stats,  c.  92,  §  16. 
lish  and  ./American,  requiring  a  will  to 

73 


§   57  EXECUTORS    AM)    ADM  IMSTRATORS.  [PART  II. 

have  been  delayed,  the  better  practice,  in  the  absence  of  a  posi- 
tive statute  of  limitations,  is  to  admit  the  will  on  due  proof,  at 
any  time,  to  probate  ; '  though  the  authenticity  of  ancient  instru- 
ments, whose  establishment  would  tend  to  disturb  estates  long 
settled  in  good  faith,  ought  only  to  be  admitted  upon  the  clear- 
est testimony.  In  the  absence  of  positive  statute  there  is  no 
definite  limit  to  the  time  within  which  a  will  may  be  probated.^ 
Nor,  apparently,  does  an  action  lie  against  one  for  neglect  to 
probate  the  will  ;  the  proper  remedy  for  parties  in  interest 
being  to  cite  the  executor  or  custodian  in  the  court  of  probate.^ 

§  5  7-  Primary  Probate  Jurisdiction  depends  upon  Last  Domicile 
of  Deceased ;  Foreign  Wills. —  Jurisdiction  over  the  probate  of 
wills,  as  over  the  settlement  generally  of  the  estates  of  those 
dying  testate  or  intestate,  is  determined  primarily  by  the  last 
domicile  of  the  person  deceased.^  And  such  jurisdiction  being 
usually  entertained  by  counties,  parishes  or  districts,  both  in  Eng- 
land and  the  American  States,  it  follows  that  the  county,  parish, 
or  district  probate  court  of  the  testator's  last  domicile  has  ex- 
clusive original  authority  to  pass  upon  the  validity  of  instru- 
ments purporting  to  constitute  his  last  will,  to  admit  or  deny 
probate  of  the  same,  and  to  grant  letters  as  for  testacy  or  in- 
testacy. Of  foreign  executors  and  administrators,  and  their 
powers,  we  shall  have  occasion  to  speak  later ;  but  it  should  be 
here  observed  that  the  probate  jurisdiction,  rightfully  taken  in 
the  proper  county  or  district,  has  full  domestic  operation  in  the 
State  or  country  of  the  testator's  last  domicile,  and  gives  to  the 

'  A  will  may  be  probated  in   Massa-  r-.  Texas  Pacific  R.,  64  Tex.  239.     The 
chusetts  more  than  twenty  years  after  English  rule  appears  to  leave  the  matter 
the  testator's  death,  for  the  purpose  of  to  judicial  discretion  as  to  time,  but  all 
establishing  title  to  real  estate;  although  the  circumstances  are  taken  into  con- 
original   administration  be  confined  by  sideration.     i  Jaim.  Wills,  218.     See 40 
statute  to  twenty  years.     .Shumway  v.  N.  J.  Kq.  3,  where  a  surviving  husband 
Holbrook,  i  I'ick.  114;  V^^aters?'.  Stick-  did  not  prove  his  wife's  will  and  it  was 
ney,  12  Allen,  12.      See  Van  Giesen  7).  allowed  probate  after  his  death. 
Bridgford,  18  Ilun  (N.  Y.)  73.     After  ^  ]^ebhan  r-.  Mueller,  114  111.  343. 
four  years  from  the  death  of  a  testator  'Stephens  AV,  (1898)  i   Ch.  162. 
a  will,  by  the  Texas  rule,  may  be  pro-  *  Supra,  §    15;  3  Redf.  Wills,  2d  ed. 
bated  for  the  purpose  of  perfecting  a  12,  13. 
title  although  letters  cannot  issue.   Ryan 

74 


CHAP.    II. J  PROBATK    OF    THE    WILI,.  i^    58 

executor  or  administrator  a  corresponding  authority  to  be  right- 
fully exercised.  And  if  foreign  letters  and  authority  be  needful 
for  facilitating  a  settlement  of  the  estate,  where  suit  must  be 
brought  abroad,  or  j^art  of  the  property  is  there  situated,  the 
first  requisite  is  to  probate  the  will,  if  there  be  one,  and  procure 
letters  testamentary  within  the  proper  domestic  jurisdiction. 
The  filing  of  a  copy  of  the  probate  of  such  will,  or  its  duly 
attested  record  serves,  in  the  foreign  probate  registry  —  with, 
perhaps,  security  given  or  ancillary  letters  procured  besides  in 
the  foreign  jurisdiction  —  the  purpose  needful,  according  as  the 
foreign  statute  in  question  may  prescribe." 

The  will  of  a  person  domiciled  in  a  certain  county  and  State 
or  country,  should  be  admitted  to  original  probate  in  the  domes- 
tic jurisdiction,  without  regard  to  the  place  where  the  will  was 
made  or  where  such  person  happened  to  die.^  And  the  judg- 
ment of  the  local  court  having  original  jurisdiction  ought  to  be 
held  conclusive  as  to  the  probate,  unless  vacated  by  proceedings 
on  appeal,  or  impeached  by  direct  proceedings  for  setting  the 
probate  aside.^  One  may  make  a  will  designed  to  operate  upon 
property  in  one  country  and  another  will  for  property  in  another 
country.'^ 

§  58.  Testamentary  Papers  Ineffectual  until  after  Proper  Pro- 
bate; Probate  relates  back.  —  In  general,  the  necessity  of  a  pro- 
bate is  fully  sustained  by  modern  practice  in  England  and  this 
country.     The  production  of  what  purports  to  be  a  will  can  be 

'Hood  V.   Lord  Barrington,  L.  R.  6  abroad  at  the  time  of  death  ;  for  in  such 

Eq.  218 ;  Carpenter  7'.  Denoon,  29  Ohio  case  there  should    have  been   original 

St.  379;  Campbell  v.  Sheldon,  13  Pick,  probate  here.    Stark  z^.  Parker,  56  N.  H. 

8;  Ives  z/.  Allyn,  12   Vt.  589;  Bromley  481  ;  Converse  z/.  Starr,  23  Ohio  St.  491. 

V.  Miller,  2  Thomp.  &  C.  (N.  Y.)  575;  As  to  the  mode  of  exemplification  of  a 

Porter?^.  Trail,  30  N.  J.  Eq.  106.  Local  foreign  will  in  New  York  practice,  with 

domestic  statutes    usually   provide  for  petition  by  one  as  agent  or  attorney  of 

filing   an   authenticated  copy  of   one's  the  foreign  executor  to  receive  letters 

will,  for  domestic  convenience,  in  case  in   his  stead,  see  Russell  v.  Hartt,  81 

of  a  deceased  non-resident,   the  same  N.  Y.  19. 

having  been  duly  probated  in  the  State  -Converse  -,'.  .Starr,  23  Ohio  St.  491. 

or   country  of   his  la.st   domicile.     But  And  see  j^z/rr/,  §  21. 

such  authentication  of  a  foreign  probate  ^  Williams,  Re,  i  Lea,  529. 

is  inadmissible  if  it  appears  that  the  tes-  •'Astor,  doods  of,  L.  R.  i  P.  U.  150; 

tator   was    domiciled    here    instead  of  (1894)  P.  260. 

75 


§   59  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

of  no  legal  force  in  the  courts,  however  ancient  the  document, 
without  this  i)ublic  record  and  seal  of  authenticity ;  and  neither 
the  temporal  courts  in  England,  nor  the  courts  of  law  and  equity 
in  the  United  States,  will  take  cognizance  of  the  testamentary 
papers,  or  of  the  rights  dependent  on  them,  until  after  their 
proper  probate.' 

Probate,  however,  having  been  duly  procured,  the  probate  is 
said  to  relate  back  to  the  time  of  the  testator's  death  ;  and  this, 
apparently,  for  the  convenience  of  the  executor  or  of  the  ad- 
ministrator with  the  will  annexed  to  whom  letters  thereupon 
issue ;  in  order  that  his  title  and  rightful  authority  may  be  ade- 
quate for  the  proper  management  and  settlement  of  the  estate, 
and  so  as  to  protect  needful  acts  on  his  part  prior  to  the  pro- 
bate.- 

§  5  9-  W'hat  Testamentary  Papers  Require  Probate ;  Wills  of 
Real  and  Personal  Property. —  It  is  laid  down  in  the  older  Eng- 
lish books,  that  if  an  instrument  be  testamentary,  and  is  to 
operate  on  personal  property,  probate  must  be  obtained  what- 
ever its  form  ;  but  that  a  will  which  clearly  respects  lands  alone 
ought  not  to  be  probated  ;  while,  if  the  will  was  a  mixed  will, 
concerning  both  land  and  personal  property,  probate  is  proper, 
though  such  probate  is  without  })rejudice  to  the  heirs  of  the 
land.^     But  such  cardinal  distinctions,  which  the  English  chan- 

'  Rex  V.  Netherseal,  4  T.  R.  258;  3  ing  ejectment.     Richards  v.  Pierce,  44 

Redf.  Wills,   12;    Strong  v.   Perkins,  3  Mich.  444. 

N.  H.  517;  Wood  z'.  Mathews,  53  Ala.  "i  Wms.    Exrs.    293;   9    Co.   38   a; 

I  ;  Pitts  V.  Melser,  72  Ind.  469.     A  will  Plowd.  281  ;  Ingle  i'.  Richards,  28  Beav. 

not  regularly  probated  cannot  be  used  366 ;  Hood  v.  Lord  Barrington,  L.  R. 

to  establish  title  to  lands  devised.    Wil-  6  Eq.  218,  224. 

lamette  Falls  Co.  v.  Gordon,  6   Oreg.  ^i  Wms.  Exrs.  388,  389;  3  Salk.  22 ; 

175.  2  Salk.  553.     It  is  admitted,  too,  that 

But  in  some  States,  contrary  to  rule,  where  executors  are  nominated  in  a  will 
it  appears  to  be  considered  that  probate  purporting  to  dispose  of  lands  alone, 
is  not  essential  to  the  validity  of  the  the  document  should  be  probated, 
will,  and  that  rights  may  be  protected  O'Dwyer  v.  Geare,  i  Sw.  &  Tr.  465 ; 
by  showing  its  validity  in  any  court.  Barden,  Goods  of,  L.  R.  i  P.  &  D.  325. 
Arlington  v.  McLemore,  33  Ark.  759.  And  so,  wherever  there  is  doubt  whether 
The  fact  that  a  will  has  not  yet  been  the  will  concerns  land  or  not,  since  pro- 
proved  does  not  prevent  a  devisee  of  bate  may  be  needful  in  such  cases  and 
lands  or  a  party  under  him  from  bring-  can  do  no  harm,     i  Phillim.  8,  9. 

76 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  59 

eery  asserted  somewhat  jealously  against  the  ecclesiastical  courts 
in  times  past,  with  the  intent  of  confining  the  spiritual  jurisdic- 
tion as  closely  as  possible  to  goods  and  chattels,  is  materially 
done  away,  under  the  Court  of  Probate  Act  of  1857,  which, 
seeking  to  prevent  the  mischief  of  double  trials  of  proof  of  the 
same  will,  requires  heirs,  devisees,  and  parties  in  interest,  to  be 
cited  in  wherever  the  formal  probate  of  a  will  is  to  affect  real 
estate,  and  declares  that  such  course  having  been  pursued,  the 
probate  decree,  establishing  the  will  as  valid,  shall  bind  all  such 
parties." 

In  most  parts  of  the  United  States  discrimination  between 
wills  of  real  and  of  personal  property  is  abolished,  and  by  ap- 
propriate statute  it  is  expressly  provided  that  no  will,  whether 
of  real  or  personal  estate,  shall  be  effectual  to  pass  the  same, 
unless  it  has  been  duly  proved  and  allowed  in  the  probate  court ; 
and  the  probate  of  a  will  devising  real  estate  shall  be  conclusive 
as  to  its  due  execution  in  like  manner  as  of  a  will  of  personal 
estate.^  The  uniform  practice,  moreover,  of  American  probate 
courts  is  to  issue  a  citation  to  all  heirs,  next  of  kin  and  parties 
interested,  before  any  will  is  admitted  in  solemn  form  to  probate, 
whether  the  testator's  estate  consists  of  real  or  personal  prop- 
erty or  of  both  together.^ 

'  I  Wms.  Exrs.  341,  388;  Act  20  &  21  ^  Local  peculiarities  do  not  affect  the 

Vict.  c.  77,  §64  (1857).     The  effect  of  general   rule  in  this  country.      Under 

the  old  English  practice  was  to  require  the  law  of  Louisiana  it  appears  that  the 

the  registrar  of   probate  to  attend  the  probate    of    a   will   is   not    conclusive 

temporal  court  whenever  in  a  suit   in-  against  parties  in  possession  of  property 

volving  title  to  land  proof  of  a  devise  which   the   executor  seeks    to  recover 

was  needful  under  a  mixed  will  already  against  them  unless  they  were  parties 

admitted  to  probate.  Chancery  regularly  litigant   in    the    probate    proceeding.s. 

enforcedsuchproductionfrom  the  regis-  And    when   the   validity   of   a   will   is 

try,  though  Lord  Eldon  expressed  his  brought  in  question  incidentally  on  a 

surprise  that  such  a  jurisdiction  should  question  of  title  to  property,  it  is  open 

have   been   exercised,     i    W^ms.    Exrs.  for  investigation  in  any  court  in  which 

390,  391 ;  I  Atk.  628  ;  6  Ves.  134,  802  ;  the  title  may  be  litigated.     Fuentes  v. 

7  Ves.  292.  Gaines,  i  Woods,  112.     InTennesseea 

*  Shumway  z/.  Holbrook,  I  Pick.  114;  will  not  sufficiently  attested  to  pass 
I  Wms.  Exrs.  293,  note  by  Perkins  ;  realty  may  be  established  as  to  person- 
Mass.  Pub.  Stats,  c.  1 27,  §  7  ;  Wilkin-  alty.  Davis  v.  Davis,  6  Lea,  543.  See 
son  V.  Leland,  2  Pet.  655 ;  Bailey  v.  Hegarty's  Appeal,  75  Penn.  St.  503. 
Bailey,  8  Ohio,  245 ;  Schoul.  Wills,  And  in  the  codes  of  some  of  our 
§§  252-254.  States,  fewer  witnesses  are  required  to 

77 


§  60  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

§  60.  Testamentary  Papers  requiring  Probate  ;  Various  Kinds 
stated;  Wills,  Codicils,  etc. — All  codicils  ought  to  be  presented 
for  probate,  together  with  the  original  will ;  and  this  even 
though  a  particular  codicil  contains  no  disposition  of  property, 
but  simply  revokes  all  former  wills.'  Indeed,  every  testamen- 
tary paper  should  be  presented  at  whatever  time  discovered, 
whether  before  or  after  a  regular  probate,  and  whether  it  merely 
confirms  the  will  already  proved,  or,  on  the  other  hand,  wholly 
or  partially  revokes  it.^  A  paper,  it  is  said,  which  disposes  of 
no  property,  has,  generally  speaking,  no  testamentary  character 
so  as  to  enable  probate  thereof  to  be  granted.^  Yet  a  will  might 
have  been  executed  for  the  express  purpose  of  designating  ex- 
ecutors, and  on  that  account  alone  deserve  admittance  to  pro- 
bate.^ Of  two  or  more  conflicting  testaments  it  may  be  need- 
ful to  determine  which  one  remains  in  force  by  way  of  later 
revocation,  or  whether  different  papers  deserve  probate  as  to- 
gether containing  the  last  will  of  the  deceased.^  And  a  will 
may  be  properly  admitted  to  probate  even  though  it  takes  ef- 
fect in  certain  provisions  only,  and  is  void  as  to  others.^ 

A  will  which  is  made  in  execution  of  a  power  requires  to  be 
propounded  for  probate  like  any  other  will,7  subject  to  what  we 
have  said  concerning  wills  which  relate  to  real  estate  only.^ 
But  a  paper  executed  as  a  last  will,  which  does  no  more  than  to 
name  a  guardian  for  one's  children,  or  appoints  to  a  situation 

a  will    of  personal   than   one   of   real  *  See  Barden,  Goods  of,  L.  R.  i  P. 

property;  a  will  in  the  testator's  own  &  D.    325;    i    Wms.   Exrs.    227,    389; 

handwriting     being     Ukewise    'favored  Lancaster,  Goods  of,  i   Sw.  &Tr.  464; 

specially  as  to  attestation.     Wms.  Exrs.  Miller  7'.  Miller,  32  La.  Ann.  437. 

67,    note    by    Perkins;    Schoul.     Wills,  ^  See  Hughes  t'.  Turner,  4  Hagg.  30; 

P^rt  III.  Morgan,  Goods  of,  L.  R.  i  P.  &  D.  323! 

'  Prenchley  tj.  Still,   2   Robert.    162;  ''George  v.   George,  47    N.    H.    27; 

Laughton  f.  Atkins,  i  Pick.  535.  Bent's  Appeal,  35  Conn.  523 ;  38  Conn. 

^  Weddall  v.  Nixon,    17    Beav.   160.  26. 

As  to  the  proper  steps  to  be  taken  for  ^  Goldsworthy  v.   Crossley,  4    Hare, 

establishing  a  will  later  in  date  found  140 ;   Hughes  j/.  Turner,  4    Hagg.   30; 

after  the  decree  of  probate,  see   Mar-  Tattnall  7:  Hankey,  2  Moore.  P.  C.  342! 

rison  V.  Every,  34  L.  T.  238.  s  ^   jj^^gg  ^^  .  ;^^^^.^^  g  ^^  .    ^(-houl. 

^  Van  Straubenzee  v.  Monck,  3  Sw.  Wills,  §  209. 
&  Tr.  6. 

78 


CHAP.   11.]  PROBATE    OF    THE    WILL.  §  6 1 

after  one's  death,'  and  neither  disposes  of  property  nor  desig- 
nates an  executor,  is  not  entitled  to  probate. 

§  6 1 .  Testamentary  Papers  requiring  a  Probate  ;  Secret  Wills  ; 
Extraneous  Documents  referred  to.  —  Sealed  packets,  directed 
by  a  testator  to  be  delivered  by  the  executor  to  persons  un- 
opened, cannot,  consistently  with  a  rightful  settlement  of  the 
estate  upon  a  representative's  official  responsibility,  be  so  deliv- 
ered ;  but  the  packets  may  be  opened  in  court  and  the  direc- 
tions receive  probate  or  not,  according  to  the  circumstances; 
the  usual  reservation  as  to  a  sufficiency  of  assets  applying,  of 
course,  if  the  contents  are  to  go  as  legacies.^  The  civil  law  ap- 
pears to  have  provided  a  special  form  of  probate  for  closed  tes- 
taments ;  but  with  us  no  testamentary  disposition  can  be  valid 
and  at  the  same  time  secret  in  the  sense  of  evading  successfully 
the  scrutiny  of  a  probate  court  or  a  public  registration  after  the 
testator's  death,  for  the  convenience  of  all  parties  interested. ^ 

But  extraneous  documents  may  be  referred  to  in  a  will  by 
way  of  regulating  details  in  the  manner  of  disposition  ;  over 
which  documents  the  testator  and  his  representatives  and  the 
court  of  probate  can  gain  no  control.  Thus,  sole  probate  may 
be  made  of  a  will  which  directs  a  settlement  of  the  estate  after 
the  manner  of  some  will  probated  in  a  different  jurisdiction,  or 
according  to  the  trusts  in  a  certain  deed  which  those  entitled  to 
possession  refuse  to  give  up  or  have  copied. "♦ 

'  Morton,  Goods  of,  3  Sw.  &  Tr.  422.  'See    Swinb.    pt.    16,    §    14,    pi.    i; 

But  |7«.  whether  this  holds  true  in  States  Goldolph.  pt.  i,  c.  20,  §  4. 

where   the  probate  court  has  original  •*  Sibthorp,  Goods  of,  L.  R.  i    P.  & 

jurisdiction  in  the  appointment  of  guar-  D.   106.     Where  another  such  will  or 

dians    as  well  as    executors.      Schoul.  document  is  referred  to,  it  is  fair,  wher- 

Wills,  §  294 ;  2  Sw.  &  Tr.  479.  ever  practicable,  to  have  an  authenti- 

A  testator  who  changes  his  will  from  cated  copy  thereof  filed  in  the  registry, 
time  to  time  during  his  life,  would  do  without  incorporating  it  in  the  probate, 
well  to  guard  against  multiplying  docu-  Astor,  Goods  of,  L.  R.  i  P.  &  D.  150. 
ments  for  presentation  to  probate.  It  Here  there  were  found  an  English  will 
is  generally  a  good  rule  to  make  a  new  and  codicils,  designed  for  English  prop- 
instrument,  complete  in  its  provisions,  erty,  and  an  American  will  with  nine 
and  destroy  all  previous  ones.  codicils   for  disposing   of   property   in 

^  Pelham  v.   Newton,   2    Cas.    temp.  America.     (1896)   P.  65.     See  Schoul. 

Lee,  46.  Wills,   §  281.     And  see  also  as  to  a 

79 


§  63  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

§  62.  Instruuieuts  whicli  do  not  purport  to  be  Testamentary. 
—  Equity  will  uphold  a  paper  sometimes  as  a  declaration  of 
trust  by  one  deceased,  though  the  same  be  not  entitled  to  proof 
as  a  will.'  The  memorandum  of  an  intended  will  not  duly  ex- 
ecuted has  also  been  admitted  in  the  English  probate  out  of 
respect  to  the  testator's  manifest  intentions.^  But  a  wiser  pol- 
icy should  check  any  such  inclination  in  the  courts  ;  for  under 
our  modern  jurisprudence  the  evil  is  far  less  of  distributing  an 
estate  among  kindred  as  intestate  than  in  curtailing  their  equal 
rights  under  any  disposition  which  falls  short  of  the  tastamen- 
tary  attributes.  It  is  held  that,  in  various  instances,  if  a  testa- 
tor refers  in  his  duly  executed  and  attested  will  to  another 
paper  which  has  already  been  written  out,  clearly  and  distinctly 
identifying  and  describing  it,  so  that  it  may  safely  be  incorpo- 
rated in  so  solemn  a  disposition,  that  paper  should  be  probated 
as  part  of  the  will  itself.  But  a  later  or  even  a  contempora- 
neous writing,  having  the  character  of  a  mere  letter  of  instruc- 
tions to  one's  executors,  and  not  being  executed  and  attested 
as  the  law  requires,  can  have  no  testamentary  obligation,  and 
should  not  be  admitted  to  probate  ;  and,  in  general,  an  extra- 
neous unattested  writing,  to  be  incorporated  with  the  will  itself, 
should  be  reasonably  identified  by  reference  as  part  of  it  and  as 
existing  when  the  will  was  executed.^ 

§  63.  Modern  Laxity  as  to  Papers  of  a  Testamentary  Character 
corrected  by  Statutes  requiring  Attestation,  etc.  —  All  papers, 
however,  which  one  may   have  executed  with  the  formalities 

bulky  catalogue  made  part  of  a  Request,  due  form,     i    Wms.    Exrs.   109,    no; 
Balme's  Goods,  (1897)  P.  261.     But  an  Barwick  v.  Mullings,  2  Hagg.  225 ;  Hat- 
extraneous  writing  referred  to  in  a  will  tatt  v.  Hattatt,  4  Hagg.  211. 
need  not  usually  be   recorded  or  pro-  ^  Lucas   v.    Brooks,    1 8    Wall.   436 ; 
bated  with  the  will  itself.  Zimmerman    v.   Zimmerman,  23  Penn. 

'  Smith   V.    Attersoll,    i    Russ.  266;  St.  275;  Ludlum  v.   Otis,  15  Hun   (N. 

Inchiquin  z/.  French,  i  Cox,  i.  Y.)   410 ;   Sibthorp,  Goods  of,   L.  R.  i 

^  Torre  v.  Castle,  i  Curt.  303;  s.  c.  P.  &  D.  106;  Bizzey  v.  Flight,  3  Ch.  D. 

on  appeal,  2  Moore,   P.   C.   133.     But,  269;    Schoul.  Wills,  §  281,  cases  cited, 

as  Williams  has  observed,  such  a  paper  In  Newton  v.  Seaman's  Friend  Society, 

was  not  regarded  as  an  actual  testamen-  130  Mass.  91,  the  English  and  American 

tary  disposition,  but  as  fixed  and  final  rule  with   its  qualifications  is  succinctly 

instructions  which  sudden  death  alone  stated  by  Gray,  C.  J. 
prevented  the  writer  from  executing  in 

80 


CHAP,   II.]  PROBATE    OF    THE    WILL.  §  63 

requisite  by  the  law  of  his  last  domicile,  and  which  purport, 
moreover,  to  dispose  of  any  or  all  of  his  estate  upon  his  decease, 
ought  to  be  presented  to  the  probate  court  for  such  decision  as 
may  be  proper  concerning  their  testamentary  character.  And 
the  modern  English  decisions,  prior  to  statutes  of  Victoria's 
reign,  show  a  very  liberal,  not  tg)  say  lax,  course  of  dealing  with 
wills  of  personal  property  in  this  respect,'  the  ancient  rule  hav- 
ing been  comparatively  stringent.  Thus  the  intended  exercise 
of  a  power  might  legally  operate  as  a  will.^  A  memorandum 
of  present  trust  for  the  use  of  A.  after  one's  decease,  accom- 
panied by  delivery  of  the  property,  might  be  regarded  as  testa- 
mentary.' Deeds,  bonds,  letters,  marriage  settlements,  bills  of 
exchange,  promissory  notes,  and  even  the  endorsement  upon  a 
negotiable  instrument,  might  operate  to  confer  a  legacy,  and,  so 
far  as  its  tenor  justified,  to  establish  a  last  testament.''  And  in 
both  England  and  the  United  States,  it  must  be  considered  the 
rule  of  the  present  day,  by  a  great  preponderance  of  authorities, 
that  the  form  of  a  will  is  by  no  means  essential  to  its  testamen- 
tary character  ;  for  if  the  writing  or  writings  duly  witnessed,  es- 
tablish an  intent  to  operate  a  disposal,  in  whole  or  in  part,  of 
one's  estate  upon  the  event  of  his  decease,  a  probate  is  proper.^ 
Hence  the  inference,  likewise  supported  by  abundant  citations, 
that  even  though  one  may  have  intended  to  dispose  by  some  in- 
strument of  a  different  sort,  and  not  by  a  will,  yet  his  disposition 
being  incapable  of  taking  effect  in  the  one  shape,  it  might  take 
effect  in  the  other ;  for,  as  the  person  had,  if  not  the  mind  to 

'  "There  is  nothing  that  requires  so  ^  Tapley  v.  Kent,  i  Robert.  400. 

little  solemnity  as  the  making  of  a  will  ■•  See    i    Wms.    Exrs.   104,   105,  and 

of  personal  estate,  according  to  the  ec-  numerous  cases  cited ;   i    Kedf.    Wills, 

clesiastical  laws  of  this  realm  ;  for  there  2d  ed.  167;   Passmore  v.   Passmore,   i 

is  scarcely  any  paper  writing  which  they  Phillim.  218.     That  the  modern  rule  is 

will    not    admit    as    such."     Per   Lord  even  more  dangerously  lax  with  respect 

Hardwicke  in  Ross  v.  Ewer,  3  Atk.  163.  to  establishing  gifts  causa  mortis  of  in- 

Before  the  operation  of  Stat,  i   Vict.  c.  corporeal    personalty,    see    2     Schoul. 

26,  no  solemnities  were  needful  for  a  Pers.  Prop.  182. 

will    of   personal    property.       i    Wms.  '  i  Wms.  Exrs.  7th  ed.  104-107,  and 

Exrs.  7th  ed.  66.  numerous  cases  cited ;  also  Perkins's  «. 

^  Southall  V.  Jones,  i  Sw.  &  Tr.  298.  toib.;  Schoul.  Wills  (1887),  Part  III.c.  i. 
And  so  as  to  a  power  of  attorney.  Rose 
V.  Quick,  30  Penn.  St.  225. 

6  81 


§63 


EXFXUTOKS    AND    ADMINISTRATORS. 


[part  II. 


make  a  will,  the  mind,  nevertheless,  to  dispose  hi  such  a  man- 
ner as  wills  operate,  his  intention  may  well  be  executed.'  A 
will  to  be  valid  requires  the  genuine  aiiiniiis  tcstandi ;  the  mind 
should  act  freely  and  understandingly  to  this  intent. - 


'  I  Wms.  Exrs.  104-107;  Masterman 
V.  Maberly,  2  Hagg.  247  ;  Morgan, 
Goods  of,  L.  R.  I  P.  &  D.  214 ;  I  Redf. 
Wills,  167.  Where  one  makes  a  deed 
to  take  effect  only  on  his  death,  this  has 
been  sustained  sometimes  as  a  deed 
where  insufficiently  executed  to  serve  as 
a  will.  Moye  v.  KiUrell,  29  Geo.  677. 
As  to  whether  an  instrument,  invalid  as 
a  deed,  but  intended  to  operate  as  such, 
can  take  effect  as  a  \\-ill,  the  English 
rule  is  very  subtle,  as  our  text  indicates. 
Edwards  v.  Smith,  35  Miss.  197;  2 
Strobh.  Eq.  34  ;  Schoul.  Wills,  §  270. 

Papers  which  are  not  on  their  face 
of  a  testamentary  character  require  to 
have  the  animus  tcstandi  proved;  while 
a  regular  paper  speaks  for  itself  on  that 
point.  Thorncroft  v.  Lashmar,  2  Sw. 
&  Tr.  794.  An  instrument  manifestly 
executed  as  a  will  is  to  be  admitted  to 
probate  without  considering  its  effect. 
Taylor  v.  D'Egville,  3  Hagg.  206.  Un- 
der various  statutes  a  paper  having  all 
the  formalities  of  a  deed,  but  concluding 
that  the  deed  shall  not  go  into  effect 
"until  after  the  death  of  said  B."  (the 
grantor)  or  otherwise  having  reference 
to  the  contingency  of  death  to  make  it 
operative,  is  held  testamentary.  Bright 
V.  Adams,  51  Ga.  239  ;  Frew  v.  Clarke, 
80  Penn.  St.  171  ;  Daniel  v.  Hill,  52  Ala. 
430.  Orders  upon  savings-banks  are 
held  testamentary.  Marsden,  Re,  i  Sw. 
&  Tr.  552.  An  instrument  in  the  form 
of  a  letter  may  be  a  valid  will.  Cowley 
V.  Knapp,  42  N.  J.  L.  297.  And  see  as 
to  various  brief  and  informal  instru- 
ments manifesting  the  testamentary  in- 
tent, 1  Redf.  Wills,  4th  ed.  165-181, 
and  ca.ses  cited;  Schoul.  Wills,  §§ 
265-274,  where  this  subject  is  treated 
at  lengtli ;  Clarke  v.   Ransom,  50   Cal. 


595.  In  short,  the  form  of  a  will  is  un- 
important ;  but  any  paper  of  a  testamen- 
tary character,  which  is  executed  after 
the  statute  formalities,  is  entitled  to  pro 
bate.  McBride  v.  McBride,  26  Gratt. 
476. 

As  to  a  will  executed  in  contempla- 
tion of  a  particular  casualty  which  did 
not  happen,  and  conditional  wills  gen- 
erally, see  1  Redf.  Wills,  176,  177,  and 
cases  cited;  French  zj.  French,  14  W. 
Va.  45S  ;  Schoul.  Wills,  §  285  ^/j^^.  and 
cases  cited.  The  point  of  inquiry  is 
whether  the  contingency  was  the  occa- 
sion of  execution  simply,  or  the  condi- 
tion on  which  the  will  was  to  become 
operative. 

Notwithstanding  the  English  cases 
decided  before  the  statute  of  i  Vict.  c. 
26,  which  paid  so  much  regard  to  inten- 
tional dispositions  of  personalty  infor- 
mally executed,  we  may  regard  it  as  the 
settled  doctrine  of  American  States  that 
a  will  must  be  perfect  in  the  testamen- 
tary sense  at  the  decease  of  the  testator, 
or  it  cannot  take  effect  as  a  will ;  and 
this  because  American  statutes  have 
long  prescribed  certain  formalities  of 
execution  as  indispensable,  including  a 
due  attestation  by  witnesses.  Mere 
drafts  or  minutes  of  a  will  are  therefore 
inadmissible  to  probate.  See  i  Redf. 
Wills,  225;  Schoul.  Wills,  §§  252,  253; 
Vernam  v.  Spencer,  3  Bradf.  Sur.  lO; 
Ruoff's  Appeal,  26  Penn.  St.  219; 
Aurand  v.  Wilt,  9  Penn.  St.  54 ;  Lun- 
gren  v.  Swartzwelder,  44  Md.  482  ;  Hart 
V.  Ru!^t,  46  Tex.  556.  But  some  of  our 
earlier  decisions,  made  under  statutes 
less  explicit,  appear  to  conform  to  the 
contemporaneous  Knglisli  rule.  See 
Boofter  r'.  Rogers,  9  Gill,  44. 

-  Schoul.  Wills,  §§  278,  279. 
82 


CHAP.   II.] 


PROBATE    OF    THE    WILL. 


§63 


Under  the  statutes,  however,  which  insist  explicitly  upon  a 
formal  method  of  execution,  —  as  by  acknowledging  in  the  pres- 
ence of  three  or  more  witnesses,  such  as  are  rarely  found  at- 
testing instruments  of  other  kinds,'  — much  of  this  refinement 
upon  the  animus  tcstandi  is  dispensed  with,  and  the  law  of  wills 
becomes  restored  to  its  legitimate  footing.  Orders,  bills  of  ex- 
change, and  papers  hastily  drawn  up  may  even  thus  demand 
judicial  recognition  as  wills  ;  ^  but  the  solemnity  of  an  execution 
with  attestation  affords  a  reasonable  assurance  that  the  deceased 
intended  thereby  a  testamentary  act  with  its  attendant  conse- 
quences   to    his    estate    after    death.     The    witnesses  become 


'  There  are  great  variations  (as  one 
may  gather  from  general  works  on  Wills) 
concerning  the  number  of  witnesses  re- 
quired for  the  due  attestation  of  a  will. 
In  England,  prior  to  1838,  a  devise  of 
real  estate  had  to  conform  to  the  stat- 
ute of  frauds  in  certain  respects  which 
did  not  apply  to  wills  of  personal  prop- 
erty; the  latter  being,  of  necessity,  re- 
duced to  writing,  generally  speaking, 
but  under  the  statute  requiring  no  fur- 
ther formality ;  so  that  the  same  will,  if 
professing  to  dispose  of  both  real  and 
personal  estate,  might  operate  in  the 
latter  respect,  but  not  in  the  former. 
But  the  new  statute,  i  Vict.  c.  26,  which 
took  effect  in  1838  (permitting  wills  pre- 
viously executed  to  remain  valid),  abol- 
ished this  mischievous  distinction  for 
the  future,  and  superseded  the  old  pro- 
visions of  law  by  new  ones  which  ex- 
acted the  same  formalities  of  execution, 
whatever  the  description  of  property ; 
declaring  that  no  will,  except  those  of 
soldiers  and  mariners,  should  be  valid 
unless  in  writing,  executed  at  the  foot 
by  the  testator,  and  acknowledged  in  the 
presence  of  two  or  more  witnesses,  i 
Wms.  Exrs.  66,  67.  Hence  English 
citations  should  be  distinguished  under 
these  two  systems  by  the  American  prac- 
titioner of  this  day  who  has  been  accus- 


tomed to  solemn  forms  of  execution 
under  his  local  law.  Our  American 
statutes  which  are  of  local  origin  pre- 
sent great  variety,  but  on  the  whole 
treat  real  and  personal  estate  alike. 
Schoul.  Wills,  Part  III.,  cs.  2,  3. 

But  no  particular  form  of  attestation 
by  the  witnesses  is  in  general  required 
by  English  or  American  statutes. 
Schoul.  Wills,  Part  III,  c.  t„  passun. 

^  A  paper  executed,  with  all  due  for- 
malities, such  as  a  bill  of  exchange,  is 
entitled  to  probate.  Jones  v.  Nicholay, 
2  Rob.  288.  So  may  a  deed  addressed 
to  one's  administrators  and  executors. 
Frew  V.  Clarke,  80  Penn.  St.  171.  And 
see,  as  to  a  simple  order  contained  in  a 
single  sentence.  Cock  v.  Cooke,  L.  R. 

1  P.  &  D.  241  ;  Coles,  Goods  of,  L.  R. 

2  P.  &  D.  362.  Doubtless  an  instru- 
ment formally  executed  as  a  will,  would, 
if  shown  to  be  done  in  jest,  have  no 
legal  operation.  Nicholls  v.  Nicholls, 
2  Phillim.  180;  Schoul.  Wills,  §  278. 
But  such  jests  are  too  rarely  perpe- 
trated to  occasion  perplexity.  Palpable 
error  in  executing  may  vitiate ;  as  where 
two  wills  were  prepared  for  execution 
each  by  A.  and  B.,  and  through  mistake 
A.  executed  the  will  prepared  for  B. 
Hunt,  Goods  of,  L.  R.  3  P.  &  M.  250. 
See  Schoul.  Wills,  §§  214-218. 


83 


§  64  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

sponsors  to  the  probate  court  when  the  maker's  own  lij)s  are 
silent," 

There  is  all  the  more  reason  for  hedging  testaments  about 
with  peculiar  formalities,  inasmuch  as  our  courts  i^ermit  a  testa- 
mentary disposition  of  one's  estate  to  be  partial  as  well  as  total, 
and  in  some  instances  appear  even  to  have  ct)nsidered  that  the 
same  instrument  might  operate  partly  /;/  prcesciiti  and  partly 
after  death  ;  -  so  that,  except  for  the  safeguards  of  statute  exe- 
cution, probate  would  little  aid  the  sound  public  policy  of  a  gen- 
eral and  equal  distribution.  Nothing  causes  such  private  heart- 
burnings or  so  wrecks  the  peace  of  families  as  the  ill-considered 
will  of  an  ancestor,  and  the  bestowal  of  preferences  out  of  his 
estate  to  particular  kinsmen  or  strangers,  which  they  may  be 
suspected  of  having  procured  unfairly. 

§  64.    By  whom   the  Will   should   be   propounded   for   Probate. 

—  The  duty  of  propounding  the  will  for  probate  devolves  nat- 
urally upon  the  person  or  persons  designated  to  execute  its  pro- 
visions. Nor  ordinarily  can  the  designated  executor  relieve 
himself  of  this  duty  except  by  filing  his  renunciation  in  due 
form  as  of  probate  record,  and  discharging  himself  of  custody 
in  a  prudent  manner.  But  the  executor  might  be  absent  or 
incapacitated  for  service,  when  the  emergency,  so  often  unfore- 
seen, of  the  testator's  death  arose,  or  else  in  culpable  default. 
Probate,  and  more  especially  the  production  of  the  document 
for  probate  custody,  is  transcendent,  however,  to  all  such  mis- 
chances, and  the  public  necessity  of  clearing  titles  and  placing 
the  dead  person's  estate  in  due  course  of  settlement  for  the  ben- 
efit of  creditors  and  all  others  interested,  paramount  to  the  right 
of  any  jmrticular  person  to  execute  the  trust.  When  the  j^erson 
entitled  renounces  or  fails  to  qualify,  the  court  has  recourse  to 
the  appointment  of  an  administrator  with  the  will  annexed  ;  and 
in  case  of  protracted  contest  or  inevitable  delay  from  one  cause 
or  another,  may  commit  the  estate  to  a  temporary  or  special 

'Schoul.  Wills,  §  279.  Thompson  ?'.  Johnson,  19  Ala.  59.    See 

^  See  Doe  z/.  Cross,  8  Q.  B.  714.    But  Devecmon   r.  Devecmon,  43   Md.  335  ; 

cf.  as  to  whether  the  same  instrument  Schoul.  Wills,  §  270. 

can  operate  both  as  a  deed  and  a  will, 

84 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  6$ 

administrator  for  collection  and  preservation  of  the  property  ; 
all  of  which  will  appear  more  fully  hereafter,'  But  the  will  itself 
must  be  produced  before  the  court  or  register,  whoever  may  be 
its  custodian  ;  and  the  death  having  conferred  a  probate  juris- 
diction, any  person  interested,  or  who  believes  himself  inter- 
ested in  the  estate  of  the  deceased,  may  petition  for  citation  to 
have  the  will  brought  into  the  court.  Of  a  custodian's  excuses 
for  delay  or  non-production  under  such  circumstances  the  court 
shall  judge.^ 

§  65.  Petition  and  Proceedings  for  Probate,  etc.;  Probate  in 
Common  Form  and  Probate  in  Solemn  Form. —  Any  one,  there- 
fore, who  claims  an  interest  under  what  purports  to  be  the  will 
of  the  deceased,  or  who  wishes  to  discharge  himself  of  its  cus- 
tody, may  have  the  instrument  seasonably  surrendered  into  the 
probate  custody.  And  it  is  held  that,  whenever  the  executors 
decline  to  offer  an  instrument  for  probate,  any  one  claiming  an 
interest  under  it,  and  not  a  mere  intruder,  may  present  it  in  his 
stead. ^  Usually,  however,  the  petition  for  probate  embraces 
that  for  the  appointment  of  executor  or  administrator  with  the 
will  annexed,  and  is  presented  by  the  party  claiming  the  office  ; 
and  under  the  simple  probate  practice  of  our  American  county 
courts,  the  petitioner  sets  forth,  in  a  printed  blank,  the  facts  of 
death  and  last  domicile  of  the  deceased,  the  names  and  places 
of  residence  of  the  surviving  widow  or  husband  and  next  of 
kin,  and,  alleging  that  the  paper  or  papers  presented  constitute 

'See  c.  4, /(7J-/,  as  to  administration,  tain  a  petition  for  the  allowance  of  a  will 

'^Godolph.  pt.  I,  c.  20,  §  2 ;  3  Redf.  wherever  the  law  authorizes  him  to  do 

Wills,    2d  ed.  45  ;   1    Wms.  Exrs.  318-  so;  and  it  is  unimportant  that  thepeti- 

320;  Foster  v.  Foster,  7  Paige,  48.     It  tioner  applies  under  the  wrong  statute, 

is  matter  of  public  interest  that  the  will  Schober  v.  Probate  Judge,  49  Mich.  323. 
should  be  produced.     Any  one  expect-         Under  some  codes  the  clerk  or  regis- 

ing  a  legacy  may  thus  petition,  as  the  ter  may  give  notice  and  take  all  initial 

old  books  say,  "  to  the  intent  that  they  steps   for   probate,  whenever   any  one 

may  thereby  be   certified   whether  the  files  the  will  at   his  office.     107  Iowa, 

testator  left  them  a  legacy."     Godolph.  384. 

ib.     The  jurisdiction  of  the  local  pro-         ^Ford?^.  Ford,  7  Humph.  92;   luiloe 

bate  court  for   thus  subserving  public  v.  Sherrill,  6  Ired.  212;  Stone  v.  Hu.v- 

policy  is  usually  detailed   by  the  local  ford,  8  Blackf.  452. 
statute.     A  probate  judge  should  enter 

85 


§  66  EXECUTORS    AND    ADMINISTRATORS.  [PART  IL 

the  last  will  and  testament  of  the  deceased,  prays  his  appoint- 
ment, making  due  reference  to  the  foundation  of  his  claim  for 
the  office,  and  his  willingness  to  qualify  according  to  law.' 

Probate  law  recognizes  two  modes  of  proving  a  will:  (i)  in 
common  form;  (2)  in  solemn  form,  or,  as  it  is  smd, />e7'  fesfes, 
or  by  form  of  law.  The  essential  distinction  consists  in  a  care- 
ful establishment  of  the  validity  of  the  will  by  proof  under  the 
latter  method,  but  not  under  the  former  ;  though  the  line  is  not 
drawn  with  uniform  exactness  as  respects  English  and  Ameri- 
can practice  on  this  point. 

§  66.  Probate  of  Will  in  Common  Form. —  (l)  As  to  the  first 
method,  probate  in  common  form  applies  only  for  convenience, 
expedition,  and  the  saving  of  expense  where  there  is  appar- 
ently no  question  among  the  parties  interested  in  the  estate 
that  the  paper  propounded  is  the  genuine  last  will,  and  as  such 
entitled  to  probate.  For  contentious  business  before  the  court, 
probate  in  common  form  would  be  quite  unsuitable. 

According  to  the  EngUsh  ecclesiastical  practice,  in  which 
such  probate  originated,  a  will  is  proved  in  common  form,  as  the 
books  state,  when  the  executor  presents  it  before  the  judge,  and 
in  the  absence  of,  and  without  citing,  the  parties  interested, 
produces  more  or  less  proof  that  the  testament  exhibited  is  the 
true,  whole,  and  last  testament  of  the  deceased  ;  whereupon  the 
judge  passes  the  instrument  to  probate  and  issues  letters  testa- 
mentary under  the  official  seal.-  An  important  feature  of  this 
practice,  from  the  earliest  times,  has  been  the  oath  of  the  exec- 
utor who  propounds  the  will  for  probate  as  to  all  the  essential 
facts  ;  and  upon  this  oath  so  great  reliance  has  always  been 
laid  in  England,  that  by  means  of  it  a  will  purporting  to  be  duly 
attested  by  witnesses,  undisputed  arid  apparently  regular  upon 
its  face,  is  readily  probated.  And  the  Court  of  Probate  Act  of 
1857  (20  &  21  Vict.  c.  jy),  treats  the  disposition  of  all  such 
non-contentious  business  as  so  purely  formal  that  j)robatc  or 

'  Smith  Prob.  Pract.  (Ma.ss.)  45.  The  probate.  Hathaway's  Appeal,  46  Midi, 
testamentary  capacity  of   tlie   testator     326. 

need  not   be  alleged  ii\  the  petition   for         -Swinb.    pt.    iG,   §14,    pi.    i;   Wms. 

Kxrs.  325. 

86 


CHAP.  II.]  PROBATE  OF  THK  WILL.  §  66 

letters  of  administration  may  in  common  form  be  procured  from 
the  registrar  ;  direct  application  to  the  court  being  nevertheless 
permitted,  as  parties  may  prefer.' 

Where  there  is  no  contention,  nor  reason  for  contention, 
English  practice  leaves  the  executor  to  his  own  choice  as  be- 
tween taking  probate  of  the  will  in  common  or  in  solemn  form. 
And  it  is  observable  of  English  probate  in  common  form,  not 
only  that  the  mode  of  proof  is  thus  made  to  subserve  the  ex- 
ecutor's convenience  as  far  as  possible,  but  that  no  notice  need 
be  given  to  persons  interested  in  the  will,  nor  opportunity 
afforded  them  to  object  to  the  proof.  The  registrar  or  court, 
however,  is  expected  to  hold  the  scales  impartially,  to  require 
sufficient  testimony  for  establishing  the  paper  as  prima  facie  a 
testamentary  one,  duly  executed,  and  to  admit  nothing  to  pro- 
bate but  what  appears  entitled  thereto.  Where  probate  in 
common  form  is  sought  of  an  instrument  which  on  the  face  of 
it  is  imperfect,  probate  will  not  be  granted  except  upon  affidavits 
stating  a  case  sufficient  to  establish  the  will  upon  solemn  proof, 
and  upon  the  express  or  implied  consent,  moreover,  of  all  the 
parties  interested.  Neither  can  the  consent  of  all  interested 
parties  procure  the  grant  in  common  form  of  an  apparently  in- 
valid will ;  nor  can  affidavits  establish  a  doubtful  instrument 
aside  from  citing  in  the  parties  interested  or  procuring  their 
formal  waiver  of  the  doubt."     In  wills  of  modern  date,  requir- 

'  Wms.  Exrs.  yth  ed.  320-332,  citing  one  person  only)  to  the  testator's  sig- 

sections  of  the  above  statute,  together  nature.       i    Wms.   Exrs.   327-330,  and 

with  rules  and  orders  of  court.     To  un-  cases  cited;  Brett  v.  Brett,  3  Add.  224. 

derstand  the  English  precedents  relat-  In  the  latter  instance,  the  rule  is,  to  ad- 

ing   to  probate  in   common  form,  one  mit    to    probate  in  common  form  any 

must    distinguish    between   wills  made  will  which  has  a  clear  attestation  clause 

prior   to   1838,  when  wills   of  personal  upon  the  executor's  oath  alone;  but  if 

property  required  no  formal  attestation  the  attestation  clause  does  not  speak 

by  witnesses,  and  wills  made  since,  upon  clearly  and  there  remains  doubt,  to  re- 

which  statute  i  Vict.  c.  26  [supra,  §  63)  quire  one  of  the  subscribing  witnesses 

operates,  requiring  two  witnesses.     In  to  testify  as  to  regularity;  this  require- 

the  former  instance  the  will,  if  attested  ment  being,  however,  dispensed  with  at 

by  two  subscribing  witnesses,  might  be  discretion,     i  Wms.  Exrs.  330-332,  and 

admitted  to  probate  upon  the  executor's  cases  cited ;  Hare,  Goods  of,  3  Curt.  54. 

oath,  if  all  appeared  regular ;  or,  when  *  i  Wms.   Exrs.  329,  and  cases  cited ; 

not    attested   at    all,  by  an  affidavit  of  Edmonds,    Goods    of,    i    Hagg.    698 ; 

two  persons  (or  in  an  extreme  case,  of  Tolcher,  Goods  of,  2  Add.  16.     Where 

87 


§  67  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

ing  attestation  by  two  witnesses  under  the  statute  i  Vict.  c.  26, 
affidavits  are  called  for  where  there  is  no  regular  clause  of  attes- 
tation ;  and  if  it  thus  appears  that  the  will  was  executed  in  due 
compliance  with  the  statute,  the  informality  becomes  of  no  legal 
consequence  ;  but,  if  otherwise,  the  court  rejects  the  prayer  for 
probate  in  common  form,  leaving  all  interested  parties  to  their 
own  course,  whether  to  propound  the  will  afterwards  in  solemn 
form  or  to  proceed  as  in  case  of  intestacy.'  Where  executors 
propound  a  certain  instrument,  claiming  that  another  paper, 
which  the  testator  executed  afterwards,  is  invalid  as  a  will,  and 
such  claim  appears  correct,  besides  which  the  persons  interested 
in  the  late  paper,  after  citation  to  propound  it  for  probate,  de- 
cline to  do  so,  but  assent  to  the  earlier  one,  probate  in  common 
form  of  the  earlier  paper  would  be  proper.^ 

§  ^J .  Probate  of  Will  in  Common  Form ;  the  Subject  con- 
tinued. —  The  probate  of  wills  in  common  form  is  permitted  by 
the  local  laws  of  several  American  States,  and,  as  in  England, 
upon  a  reasonable  assumption  that  the  instrument  presented  is 
valid  in  all  respects,  and  its  proof  not  contested  by  any  of  the 
parties  interested. ^  Thus,  in  New  Hampshire,  this  mode  of 
probate  finds  distinct  statute  recognition  ;  not,  however,  with  a 
similar  reliance  upon  the  executor's  oath  ;  for,  American  law 
commonly  demanding  attestation  by  witnesses,  the  judge  ap- 
proves in  common  form  upon  the  testimony  of  one  of  the  sub- 
scribing witnesses  alone,  without  requiring  the  other  wit- 
nesses to  attend  ;  though  approval  is  given  apparently  upon  ex 
parte  proceedings,  as  in  England,  so  as  to  dispense  with  a  cita- 
tion to  persons  interested  in  the  estate.'* 

minors  are  parties  interested,  probate  'Thus  it  is  or  has  been  recognized  in 
in  common  form  cannot  usually  be  ob-  New  Hampshire,  North  Carolina,  South 
tained  of  a  will  which  is  apparently  im-  Carolina,  Mississippi,  etc.  Armstrong 
perfect,  since  their  consent  is  unobtain-  v.  Baker,  9  Ired.  109;  Kinard  v.  Rid- 
able. Gibbs,  Goods  of,  i  Hagg.  376.  dlehoover,  3  Rich.  258 ;  Jones  v.  Mose- 
And  as  to  issue  born  after  probate,  see  ley,  40  Miss.  261;  Martin  v.  Perkins, 
Taylor,  Goods  of,  i  Hagg.  642.  56  Miss.  204.     And  see  as  to  New  Jer- 

'Ayling,  Goods  of,  i  Curt.  913....    ^^^^sey,  52  N.  J.  Eq.  319. 

^Palmer  v.   Dent,  2    Robert.  284;    i  ■'George  v.   George,  47    N.    H.    44; 

Wms.  Exrs.  332.  Noyes  v.  Barber,  4  N.  H.  406. 

88 


CHAP.   II.]  PROBATE    OF    THE    WILL,  §  68 

The  intent  of  such  probate  in  common  form,  granted  ex  parte, 
appears  to  be,  that  in  case  contest  shall  hereafter  arise,  solemn 
proof  shall  be  required  and  the  former  decree  may  be  set  aside 
accordingly. 

§  68.  The  Subject  continued ;  American  Statutes  as  to  Non- 
Contentious  Business.  —  What  in  an  American  State  would  be 
called  probate  in  common  form  may  well  vary  still  farther  from 
the  English  method,  as  do  the  statutes  in  comparative  historical 
sequence,  both  as  respects  the  needful  formalities  of  wills  and 
probate  jurisdiction.  Citation,  for  instance,  being  simple  and 
inexpensive,  or  by  a  county  newspaper  publication  rather  than 
personal  summons,  and  practical  distinctions  between  wills  of 
real  and  of  personal  property  being  quite  out  of  favor,  in  Ameri- 
can jurisprudence,  the  American  procedure  usually  refers  pro- 
bate to  the  judge,  while  the  register,  exercising  no  such  func- 
tions, receives  simple  ofificial  custody  of  the  so-called  will,  and 
upon  the  petition  for  probate  placed  upon  his  file  at  any  time, 
orders  a  citation  to  be  published,  that  all  parties  interested  ma}- 
appear  before  the  judge  at  the  next  convenient  court  day.  An 
excellent  statute  in  Massachusetts,  to  which  we  shall  presently 
allude  again,  provides  that,  when  it  appears  to  the  court,  by  the 
written  consent  of  the  heirs-at-law,  or  other  satisfactory  evi- 
dence, that  no  person  interested  in  the  estate  intends  to  object 
to  the  probate  of  the  will,  the  court  may  grant  probate  thereof 
upon  the  testimony  of  one  only  of  the  subscribing  witnesses.' 
Probate  under  this  statute  is  not  rendered  ex  parte,  or  with  the 
inconclusiveness  of  a  strict  probate  in  common  form,  but  stands 
to  all  intent  as  a  probate  in  solemn  form,  because  all  the  inter- 
ested parties  must  have  been  brought  within  the  scope  of  a  ju- 

The  probate   of  a   will    in   common  form  and  wthout  notice  to  the  heirs, 

form  is  effectual  and  binding  until   at-  and  if  upon  the  hearing  counsel  appear 

tacked  and  overturned   in   direct    pro-  for  the  heirs  and  cross-examine  the  wit- 

ceedings.      Tucker   v.    Whitehead,    5S  nesses  to  the  will,  this  does  not  waive 

Miss.  762.     Probate  in  solemn  form  is  the  probating  in  solemn  form.     Gray  ta 

made  after  all  persons   whose  interests  Gray,  60  N.  H.  28. 
may  be  affected   have  been  duly  noti-         'Mass.  Gen.   Stats,  c.  92,  §  19;  post 

fied  and  had  an  opportunity  to  be  heard.  §  70. 
If  a  petition  is  for  probate  in  common 

89 


§  6g  EXECUTORS    AND    ADMINISTRATORS.  [l\AKT    It. 

dicial  investigation,  and  their  respective  rights  fairly  protected. 
For,  as  we  must  bear  in  mind,  the  essential  facts  which  entitle 
a  paper  legally  to  probate  do  not  differ,  whether  the  probate  is 
contested  or  not  contested.  And  as  between  the  executor 
named  in  a  will  and  a  mere  subscribing  witness,  the  testimony 
of  the  latter  is  the  safer,  as  a  rule,  to  depend  upon  in  all  cases 
of  probate, 

§  69.    Probate    of   "Will    in   Solemn   Form;  English   Practice. — 

(2)  As  to  the  second  method  of  proving  wills.  Probate  in 
solemn  form  is  the  only  kind  suitable  where  the  validity  of  the 
will  is  disputed  ;  and  to  accept  the  English,  though  not,  per- 
haps, the  American,  distinction,  the  only  kind  which  a  judge 
alone,  and  not  a  register,  is  empowered  to  grant,  and  which 
necessarily  brings  in  all  interested  in  the  estate  as  parties  to 
the  probate  proceedings,  so  as  to  be  bound  by  the  final  decree. 
The  English  probate  court  has  established  rules  for  conten- 
tious business  of  this  description.  Thus,  an  executor  may  be 
compelled  to  prove  a  will  in  solemn  instead  of  common  form  by 
any  one  of  the  next  of  kin,  or  a  person  interested  in  the  will, 
such  person  having  first  filed  a  caveat  in  the  court  which  takes 
jurisdiction  of  the  estate  of  the  deceased,  to  the  intent  that 
notice  shall  be  given  him  of  any  application  for  probate,  and  af- 
terwards responding  to  a  notice  sent  from  the  registrar  accord- 
ingly.' So,  too,  after  an  executor  has  propounded  and  proved 
the  will  in  common  form,  he  may  be  put  to  the  proof  over  again, 
per  testes,  in  solemn  form,  by  any  person  having  an  interest,  and 
this  (as  it  has  been  held)  notwithstanding  a  long  lapse  of  time, 
like  thirty  years,  and  the  great  inconvenience  of  procuring 
proper  testimony,  which  the  executor  may  suffer  in  consequence.^ 

■  3  Reclf.  Wills,    2d  ed.   27  )/. ;  Rules  seems  to  limit  the  time  of  compelling 

and  Orders  under  20  &  21   Vict.  c.  77,  such   solemn  probate  to  ten  years;  but 

and   21  &  22    Vict.    c.    95.     Upon   the  Williams  considers  this  a  typographical 

party  answering  to   his  notice,  the  con-  error,     i  Wms.  Exrs.  334,  ;/.     One  who 

tentious  bu.siness  is  held  to  commence,  lets  a  long  time  elapse  before  requiring 

and  the  register  enters  the  cause  upon  such  probate  can  claim   no  indulgence 

the  docket  accordingly.  of  the  court,  and  nothing  beyond  his 

"2  Wms.   Exrs.  334;  Godolph.  pt.  i,  legal  rights.     Blake  r.  Knight,  3  Curt, 

c.  20,  §  4.     Swinburne,  pt.  6,  §  14,  pi.  4.  553.     Where  no  statute  fixes  the  bar- 

90 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  69 

That  the  next  of  kin  acquiesced  in  proving  the  will  in  common 
form  does  not  debar  him  from  insisting  afterwards  upon  the 
solemn  probate  ;  nor  does  even  his  receipt  of  a  legacy  under 
the  will,  provided  he  brings  the  legacy  into  court  before  pur- 
suing his  right,  that  its  payment  may  abide  the  result  of  the 
contest.'  The  right  of  the  next  of  kin  as  such  to  require  proof 
of  the  will  in  solemn  form  is  absolute  ;  and  the  same  right  ex- 
tends to  any  party  in  interest.  But  some  interest,  however  re- 
mote, must  be  shown  before  the  executor  can  be  put  to  so 
troublesome  a  task.  A  creditor  as  such  has  no  recognized  in- 
terest in  the  probate,  but  only  a  right  to  ascertain  whether 
there  be  assets  sufficient  to  meet  the  debts.-  But  as  amicus 
ciiricB  and  without  costs  any  creditor  may  contest  a  will ;  and  it 
would  appear  that  whenever  the  court  or  registrar  finds  that 
probate  in  common  form  ought  not  to  be  granted,  probate  in 
solemn  form  may  be  compelled,  though  the  practice  is  to  wait 
until  some  interested  party  opposes  the  will  of  his  own  motion.^ 
Finally,  in  English  practice,  the  executor  may  himself  pro- 
pound the  will  in  solemn  form,  in  the  exercise  of  a  rightful  dis- 
cretion."*  And  manifestly,  wherever  the  executor  is  not  of  kin 
and  sole  legatee,  but  other  large  pecuniary  interests  are  at 
stake,  this  must  be  his  only  prudent  course  ;  unless  it  is  certain 
that  the  will  is  neither  objectionable  in  itself  nor  likely  to  be 
objected  to.  In  such  case,  the  executor  cites  the  next  of  kin 
and  all  others  claiming  an  interest,  to  attend  the  proceedings  ; 
and  at  the  appointed  time,  the  will  having  been  proved  by  suf- 
ficient testimony,  upon  a  hearing,  and  all  direct  contest,  should 

rier,  it  is  after  all  uncertain  whether  '  Cas.  temp.  Lee,  544 ;  Menzies  v. 
any  specific  time  can  be  set  for  limiting  Pulbrook,  supra.  The  vexatious  con- 
such  compulsion.     2  Phillim.  231,  note,  duct  of  a  party  in  interest,  who  compels 

'  Benbow,  Goods  of,  2  Sw.  &Tr.  448;  probate  in  solemn  foiTn,  after  permit- 
Core  V.  Spenser,  i  Add.  374  ;  i  Wms.  ting  probate  in  common  form,  affords 
Exrs.  336,  337.  A  legatee  who  has  re-  reason  rather  for  condemning  him  in 
nounced  administration  with  the  w!l  costs  than  for  denying  the  right  of  com- 
annexed  is  not  debarred  from  compel-  pulsion.  See  Bell  v.  Amistrong,  i  Add. 
Ung  solemn  probate.  2  Cas.  temp.  Lee,  375. 
241.  *  I  Wms.  Exrs.  335;  3  Redf.  Wills, 

^  I  Cas.  temp.  Lee,   544 ;  Menzies  v.  3d  ed.  27  «. 
Pulbrook,   2  Curt.  S45  ;   i  Wms.  Exrs. 

91 


§   JO  EXECUTORS    AND    ADMINISTRATORS.  [pART  II. 

any  arise,  and  the  proceedings  in  the  case  terminating  in  a  pro- 
bate of  the  will  in  solemn  form,  the  judgment  stands  conclusive 
like  other  final  judgments,  unless  appealed  from.' 

Citation  to  all  parties  in  interest  is  a  feature  incident  to  all 
contentious  proceedings  for  establishing  a  will.  And  while 
English  probate  practice  had  reference  formerly  to  wills  of  per- 
sonal and  not  real  estate,  the  Court  of  Probate  Act  of  1857  re- 
quires heirs-at-law  and  devisees  to  be  cited  whenever  the  valid- 
ity of  a  will  affecting  real  estate  is  disputed,  on  i)roving  it  in 
solemn  form,  or  in  any  other  contentious  cause  ;  and  the  validity 
of  the  will  being  once  solemnly  adjudged,  the  decree  binds  for- 
ever all  persons  thus  cited  or  made  parties.^ 

§  70.  Probate  of  "Will  in  Solemn  Form ;  American  Practice.  — 
Our  American  practice  being  simple  and  inexpensive  by  com- 
parison, less  occasion  is  found  than  in  England  for  duplicating 
probates ;  and  in  most  States  one  probate  practically  concludes 
all  issues.  This  probate  deserves  the  style  of  solemn  form 
(though  seldom  designated  as  such),  and  borrows  certain  fea- 
tures, including  the  citation,  from  the  English  s]:)iritual  })ractice. 
One  rule  applying  in  general,  whether  the  will  relate  to  real  or 
personal  estate,  or  to  both,^  the  citation  which  issues  from  the 

'  lb.     Even  though  certain  next   of  Thus  notice   must   be  mailed  to  each 

kin  were  not  regularly  cited ;  yet  their  heir  or  personally  served.     Bartel's  Es- 

actual  cognizance  that  probate  in  solemn  tate,  Myrick  (Cal.)   130;  Cobb,  Estate 

form  was  pending  through  the  citation  of,  49  Cal.  600.     In  a  suit  to  contest 

of  others  binds  them  to  oppose  or  be  the  validity  of  a  will,  the  legatees  and 

forever  barred.     Ratcliffe  z'.  Barne.s,  2  devisees  are  made  indispensable  parties 

Sw.  &  Tr.  486.  in  Ohio.     Reformed  I'resb.  Church  v. 

^  Act  20  &  21  Vict.  c.  77,  §§  61,  63;  Nelson,  35  Ohio  St.  638.     But   not  in 

Wms.  Exrs.  341  ;  Fyson  v.  Westrope,  i  New  \'ork,  where  they  may  intervene 

Sw.  &  Tr.  279.  but  need  not  be  cited.    2  Demarest,  160. 

^  Such,  for  instance,  is  the  practicein  And  see  9  Lea,  571,  as  to  a  devisee. 

Mas.sachusetts,  which  is  similar  to  that  The  next  of  kin  has  an  interest  en- 

of    many  other    States.     Smith   Prob.  titling  him  to  contest  the  probate  of  an 

Pract.  46 ;  O'Dell    v.    Rogers,  44  Wis.  alleged  will ;  so,  also,  one  who  by  the 

136;  Parker  v.   Parker,   11   Cush.  519.  probate  would  be  deprived  of  rights  un- 

In  some  parts  of  the  United  States  per-  der  a  former  will.     Merrill  v.  Rolston, 

sonal    service   or   summons  is  insisted  5  Rtdf.  (N.  Y.)  220.     No  appointment 

upon,  and  newspaper  publication  alone  of  z. guardian  ad  litem  for  a  minor  in- 

will  not  give  jurisdiction  of  the  parties  lerested  is  necessary.     Mousseau's  Will, 

interested  sufficient  to  conclude  them.  30  .Minn.  202.     Newspaper  publication 

92 


\ 


CHAP.  II.]  PROBATE  OK  THE  WILL.  §  70 

register's  office,  upon  the  filing  of  the  will  accompanied  by  one's 
petition  for  letters  testamentary  or  of  administration,  embraces 
in  terms  hcirs-at-law,  next  of  kin,  and  all  other  i)crsons  inter- 
ested in  the  estate  of  the  deceased.  These  arc  summoned  to 
appear  in  court  at  a  day  named,  and  show  cause,  if  any  they 
have,  why  the  will  should  not  be  allowed  and  the  petition 
granted.  This  citation  requires  usually  no  personal  service, 
but  simply  publication  by  copy  in  some  designated  newspaper 
which  circulates  in  the  county  of  the  testator's  last  domicile. 
Sometimes  the  petitioner  is  ordered  to  mail  copies  to  the  parties 
interested  besides.  Once  a  week,  for  three  successive  weeks, 
is  the  rule  of  publication  in  many  States ;  though  the  form  and 
terms  of  notice  are  largely  in  the  discretion  of  the  judge. 
Formal  notice  is  dispensed  with  when  the  heirs-at-law,  next  of 
kin,  and  all  others  interested  in  the  estate  of  the  deceased  ex- 
press in  writing  their  waiver  of  notice  in  favor  of  the  petition, 
being  all  sui  juris ;  otherwise,  the  petitioner,  having  served  the 
citation  in  accordance  with  the  terms  prescribed,  makes  his 
return  of  the  fact  under  oath,  on  or  before  the  day  fixed  for  the 
hearing. 

The  procedure  being  thus  essentially  in  solemn  form,  inas- 
much as  heirs,  kindred  and  all  other  parties  interested  are  suf- 
ficiently summoned  and  made  parties  to  the  hearing  for  probate, 
to  contest  then  and  there  the  will  propounded,  if  they  so  de- 
sire, examine  all  the  witnesses  to  the  will  and  introduce  counter 
testimony,  the  judicial  hearing,  whether  upon  contest  or  not, 
concludes  the  validity  of  the  will  ;  subject,  of  course,  to  vacat- 
ing probate  on  appeal,  the  submission  of  issues  of  fact  to  a  jury, 
impeachment  by  direct  proceeding,  and  other  rights,  such  as 
local  statutes  and  practice  may  secure.  The  decision  of  the 
county  judge  of  probate  is  that  of  the  lower  tribunal  of  com- 
petent original  jurisdiction,  and  concludes,  while  undisturbed, 
the  common-law  courts.'     And  the  only  distinction  worthy  here 

or  personal  service  upon  all  parties  in-  to   probate  proceedings  can  make    no 

terested,  is  permitted  at  discretion  by  motion  therein.     5  Redf.  (N.  Y.)  326. 

many  local   statutes;    but    the  former  Local  statutes  should  be  consulted  on 

course  is  the  more  convenient.      One  such  points  of  practice, 
who  has  not  been  formally  made  a  ])arty         '  Brown  v.  Anderson,  13  (leo.  171  ; 

93 


§7o 


EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 


of  regard  is,  that  while  at  the  probate  hearing  the  propounder 
of  a  will,  who  anticipates  a  contest,  must  be  prepared  to  prove 
his  case  {subject  to  any  adjournment  of  the  case  for  good  rea- 
sons), probate  where  no  contention  arises,  may  be  granted  on  the 
favorable  testimony  of  a  single  subscribing  witness,  as  the 
statutes  of  some  States  expressly  provide." 

There  are  States,  however,  in  which  the  probate  in  solemn 
form  is  distinguished,  as  in  England,  from  that  in  common  form, 
and  where  the  due  citation  of  all  persons  in  interest  to  witness 
the  proceedings  and  the  production  of  the  will  in  open  court,  for 
proof  upon  testimony  which  they  may  fully  controvert,  becomes 
appropriate  to  contentious  cases,  or  else  calls  for  an  executor's 
discretion.-  In  such  States,  the  law  sometimes  limits  the 
period  within  which  a  probate  in  common  form  may  rightfully 
be  contested.^  And  in  various  States,  as  in  English  practice,  an 
interested  party  may  file  a  caveat  against  the  probate  of  a  will 
he  means  to  contest.-* 


1  Wms.  Kxrs.  ^^;i,  Perkins's  ;/.  "  We 
understand  a  probate  in  .solemn  form  to 
be  a  probate  made  by  a  judge,  after  all 
persons  whose  interests  may  be  affected 
by  the  will  have  been  notified  and  had 
an  opportunity  to  be  heard  on  the  sub- 
ject." Richardson,  C.  J.,  in  Noyes  z>. 
Barber,  4  N.  H.  409.  And  see  Town- 
send  V.  Townsend,  60  Mo.  246  ;  Parker 
V.  Parker,  11  Cush.  524;  Marcy  z'. 
Marcy,  6  Met.  367. 

'  Mass.  Gen.  Stats,  c.  92,  §  19;  Dean 
V.  Dean,  27  Vt.  746;   Rogers  f.  Winton, 

2  Humph.  178  (as  concerns  a  will  of 
personal  property).  Such  a  statute,  in 
aid  of  a  probate  procedure  so  inexpen- 
sive as  ours,  secures  the  main  advan- 
tage of  a  probate  in  common  form 
while  avoiding  its  obvious  disadvan- 
tage. It  is  very  desirable  that  such  en- 
actment should  be  general  in  the  United 
States.  In  some  States  the  propounder 
of  a  will  is  bound  to  have  all  the  sub- 
scribing wtnesses  ready  to  testify  (three 
or  more  in  number,  as  some  States  re- 
quire, for  a  due  attestation),  even  though 


the  attestation  clause  should  appear 
perfect  and  the  will  regular  upon  its 
face,  and  no  one  objects  to  the  probate. 
See  Alli.son  ?•.  Alhson,  46  111.  61  ;  3  Redf. 
Wills,  37,  ;/.  This  appears  a  useless 
formality  and  expense  to  an  estate. 
.  But  even  though  all  parties  interested 
waive  objection,  as  they  might  do  by 
collusion,  the  court  should  not,  we  ap- 
prehend, admit  a  will  to  probate  with- 
out calling  for  another  witness  or  better 
testimony,  if  the  single  subscribing  wit- 
ness fails  to  make  satisfactory  proof, 
and  the  vahdity  of  the  will  is  not  made 
out  as  a  prima  fade  case. 

^  Brown  v.  Anderson,  13  Ga.  171  ; 
supra,  §  67. 

3  I  Wms.  Exrs.  335,  Perkins's  «. ; 
Parker  v.  Brown,  6  Gratt.  554 ;  Roy  v. 
Segrist,  19  Ala.  8ic  ;  Martin  v.  Perkins, 
56  Miss.  204.  Probate  in  the  common 
form  cannot  be  pleaded  as  res  judicata 
in  a  direct  proceeding  to  determine  the 
validity  of  a  will.  Martin  v.  Perkins, 
56  Miss.  204. 

'17  N.  J.  Eq.  585;  62  Md.  342. 


94 


CHAP.   II.]  PROBATE    OF    THE    WILL.  §   73 

§  71.  Contest  over  Conflicting  Testamentary  Papers. —  Contest 
may  arise  over  the  probate  of  contiicting  testamentary  papers, 
each  of  which  has  been  propounded  as  the  instrument  truly  en- 
titled to  probate.  Here  the  object  being  to  ascertain  which,  if 
either  or  any  of  them,  embodies  in  testamentary  form  the  last 
wishes  of  the  deceased,  proof  of  the  instrument  of  latest  date  comes 
first  in  order.'  A  similar  rule  applies  where  the  validity  of 
particular  codicils  is  in  dispute. 

§  J  2.  Agreement  of  Parties  in  Interest  to  conform  to  an  Invalid 
Will,  etc.  —  Out  of  respect  to  the  wishes  of  a  deceased  person, 
all  parties  in  interest  in  his  estate  may  agree  to  carry  out  pro- 
visions of  a  certain  will  or  codicil,  which,  for  want  of  due  execu- 
tion or  other  cause,  must  be  pronounced  invalid.  To  such 
agreements,  all  who  may  be  lawfully  entitled  to  share  in  the  es- 
tate and  its  benefits  (creditors  not  included)  should  be  made 
voluntary  parties.  Such  transactions,  in  fact,  stand  upon  the 
footing  of  general  dispositions  by  the  rightful  owners  of  prop- 
erty, and  cannot  operate  to  entitle  to  probate  what  was  not,  in 
the  legal  sense,  a  will.  But  where  a  pending  contest  has  been 
adjusted  out  of  court,  by  all  the  parties  interested,  and  opposi- 
tion is  withdrawn  to  the  particular  will  propounded,  such  will 
may  be  passed  to  probate  on  prima  facie  evidence  of  its  valid- 
ity, leaving  private  arrangements  concerning  the  distribution  of 
the  estate  for  the  parties  to  prove  and  enforce  in  other  courts, 
or  carry  out  amicably  among  themselves.' 

§  73-  T^6  Proof  Needful  to  establish  a  Will;  Proceedings  at 
the  Hearing  for  Probate.  —  The  party  who  propounds  a  will  for 
probate  should  be  prepared  to  prove  affirmatively  three  things, 

'  Lister  v.  Smith,  3  S\v.  &  Tr.  53.  of  a  will  whose  admission  was  contested, 
'See  Greeley's  Will,  In  re,  15  Abb.  to  ^\-ithdraw  the  same  from  probate; 
Pr.  N.  S.  393.  Courts  of  probate  have  but  sttnble  not  the  testimony  and  pro- 
no  power  or  discretion  to  superadd  other  ceedings  on  an  application  for  probate, 
conditions  or  dispense  A\-ith  any  of  those  Heermans  v.  Hill,  4  Thomp.  &  C.  602 ; 
emmierated  in  the  statute  as  necessary  Greeley's  Will,  15  Abb.  Pr.  N.  S.  393. 
to  admit  a  will  to  probate.  Doran  v.  Compromises  are  permitted  by  local 
Mullen,  78  111.  342.  A  New  York  sur-  statute, 
rogate  has  power  to  allow  the  proponent 

95 


§   yi  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

as  conformity  with  the  statutes,  English  or  American,  at  the 
i:)resent  day  usually  demands  :  ( i )  that  the  will  was  in  writing 
duly  signed  by  the  testator,   or  under   his   express  direction ; 

(2)  that  the  will  was  attested  and  subscribed  in  presence  of  the 
testator    by    the    requisite    number    of    competent    witnesses ; 

(3)  that  the  testator  at  the  time  when  such  execution  took  place 
was  of  sound  and  disposing  mind.  In  other  words,  the  essentials 
of  a  statute  execution  must  be  shown  as  a  fact ;  and  further, 
that  the  testator  was  at  the  time  of  such  execution  in  suitable 
testamentary  condition  ;  which  latter  essential  involves  several 
elements,  as  we  shall  presently  show,  not  easily  to  be  com- 
pressed into  a  single  verbal  expression. 

In  the  foregoing  respects,  and  in  general,  to  show  that  the 
instrument  propounded  was  the  testator's  last  will  and  testa- 
ment, the  burden  of  proof  rests  upon  the  party  who  offers  the 
instrument  for  probate ;  and  what  is  here  said  of  a  will  applies 
also  to  each  codicil  which  may  be  offered  with  it."  And  inas- 
much as  the  burden  of  proof  rests  thus  upon  the  proponent,  as 
to  due  execution  of  the  alleged  testator's  competency,  he  is  en- 
titled to  open  and  close  the  case  where  a  jury  is  empanelled.^ 

But  the  usual  rules  of  evidence  apply  to  such  judicial  hear- 
ings. The  proponent  is  aided  by  legal  presumptions,  and  the 
burden  of  proof  may  shift  from  one  side  to  the  other  in  the 
course  of  a  hearing.  By  the  old  rule  of  the  English  eccle- 
siastical courts,  one  witness  could  not  make  full  proof  of  a  will 
in  solemn  form  ;  ^  and  yet,  as  we  have  seen,  various  American 
statutes  now  permit  a  single  satisfactory  witness  to  prove  a 
will  which  no  party  in  interest  objects  to,^  while  sound  modern 
practice  here,  as  in  England,  insists  that  the  rules  of  evidence 
applicable  in  common-law  tribunals  shall  be  observed  in  the  trial 

'  2  Wms.  P^xrs.  20,    342;    Sutton   v.  ^Robinson  v.   Adams,  62    Me.   369; 

Sadler,  3  C.  B.  N.   S.  87  ;  Robinson  v.  Taff  v.  Hosmer,  14  Mich.  309. 

Adams,    62     Me.    369;    Crowninshield  ^  i  Wms.  Exrs.  342  ;  Evans  z/.  Evans, 

V.  Crowninshield,  2   Gray,  524  ;  Taff  v,  i  Robert.  165. 

Hosmer,    14   Mich.    309;    Delafield    v.  '^  Sitpra,^  70.     But   see  requirement 

Parish,  25  N.  V.  9;  Comstock  v.  Had-  of  a  New  York  statute  that  all  the  wit- 

lyme,  8  Conn.  254 ;  Evans  v.  Arnold,  52  nesses  shall   be  examined,  if  residents, 

Ga.  169;  Gerrish  v.  Nason,  22  Me.  438.  etc.  Swenarton  v.  Hancock,  22  Hun,  43. 

96 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  73 

of  all  questions  of  fact  before  the  court  of  probate.'  The  party 
who  has  the  burden  of  establishing  a  will  gives  evidence  by  his 
subscribing  witnesses  of  such  facts  as  make  owl  prima  facie  z. 
valid  testamentary  instrument  ;  showing,  as  he  ought,  that  the 
execution  was  formal  and  regular,  with  respect  to  both  signature 
of  the  testator  and  the  attestation  ;  and  that  the  testator  ap- 
peared to  be  of  sound  and  disposing  mind  and  capacity.  The 
proponent  seldom  has  to  go  beyond  formal  proof  by  the  sub- 
scribing witnesses  (who,  from  their  peculiar  connection  with  the 
testator  and  his  instrument,  should  be  deemed  of  the  first  con- 
sequence in  the  proof),  and  possibly  one  or  more  of  these  may 
be  dispensed  with.  Whether  more  proof  be  requisite  on 
his  part  must  depend  upon  circumstances,  and  particularly  (the 
instrument  itself  appearing  regular  on  its  face)  upon  the  mode 
and  force  of  the  opposition  developed  at  the  hearing.  It  is  for 
the  contestant,  after  cross-examining  the  proponent's  witnesses, 
to  enter  upon  proof  of  alleged  incompetency  in  the  testator,  or 
other  ground  for  breaking  down  the  will,  before  the  proponent 
need  put  in  his  whole  case,  and  present  affirmatively  all  he  has 
to  offer  on  such  an  issue.^  In  such  a  sense,  but  not  more  em- 
phatically, it  may  be  said  that  when  the  proponent  has  proved 
the  due  execution  of  a  paper  not  incompatible  in  its  structure, 
language,  or  details,  with  sanity  in  the  testator,  and  when,  upon 
such  formal  testimony,  notwithstanding  the  cross-examination  of 
his  own  witnesses,  it  is  probable  that  the  will  was  executed  by 
one  at  the  time  in  competent  testamentary  condition,  the  bur- 
den of  showing  the  contrary  becomes  shifted  upon  the  con- 

'  See   English  statute  21  &  22   Vict,  defence,  would,  in  many  cases,  be  equiv- 

c-  77>   §  7)7,  (court    of   probate    act    of  alent  to  a  denial    of  justice.     For,  al- 

1857),  to  this  effect,  cited  i  Wms.  Exrs.  though  there  would  still  be  a  right  to 

344;    Wright  V.  Tatham,  5  CI.  &  Fin.  give  rebutting  evidence,  this,  in  the  sense 

670.     And  see  Hastings  v.   Rider,  99  in  which  rebutting  evidence  must  then 

Mass.  625,  per  Gray,  J.  be  understood,  would  be  of  little  value, 

^  See  Cooley,  J.,  in  Taff  v.   Hosmer,  since  it  must  be  confined  to  disproving 

14  Mich.  309.     "  All  rules  of  evidence,"  facts  and  circumstances  shown  by  the 

observes  the  court,  in  the  lucid  opinion  defence." 

here  pronounced,  "  are  designed  to  elicit         As  to  probate  of  a  will  and  the  testi- 

truth  ;  and  it  is  obvious  that  to  require  mony  in  such  controversies,  ?,ee  passim, 

the  proponent  to  anticipate,  at  his  peril,  Schoiil.  Wills,  Part  II. 
the  case  that  would  be  shown  by  the 

7  97 


§   74  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

testants  of  the  will.  And  should  the  contestants  thereupon 
establish  incompetent  testamentary  condition,  or  other  ground 
for  refusing  probate  of  the  will,  the  burden  shifts  back  to  the 
proponent,  who,  as  the  result  of  the  whole  hearing,  is  bound  to 
establish  satisfactorily  the  essentials  we  have  stated.  But  fraud 
or  undue  influence  must  be  proved  by  those  who  allege  it.' 

§  74-  Proof  of  the  Will ;  Instrument  to  be  in  "Writing,  and 
signed  by  the  Testator.  —  The  English  Statute,  I  Vict.  C.  26, 
§  9,  concerning  the  execution  of  wills,  does  not  require  literally 
a  signature  by  the  testator  himself ;  but  that  the  will  should  be 
in  writing  and  signed  by  the  testator  or  by  some  other  person 
in  his  presence  and  by  his  express  direction.''  And  such  is  the 
expression,  likewise,  of  various  American  statutes  as  to  any 
testamentary  disposition,  whether  of  real  or  personal  estate,  or 
both.3 

Unless  a  statute  expressly  provides  as  to  the  place  of  signa- 
ture, the  testator's  name  need  not  be  signed  at  the  end  of  the 
instrument.  Thus,  where  a  whole  will  was  in  the  testator's 
handwriting,  and  commenced,  "  I,  A.  B.,  do  make,"  etc.,  the  in- 
strument was  held,  in  conformity  with  analogous  instances  un- 
der the  Statute  of  Frauds,  to  have  been  sufficiently  signed. •♦ 
But  the  signature,  whatever  its  position,  must  have  been  made 
with  the  design  of  authenticating  the  whole  instrument  ;  and 
the  natural  presumption  as  to  a  document  to  which  one's  signa- 
ture has  not  been  appended,  is  that  full  execution  was  not 
meant.5  One  signature  suffices,  especially  if  it  be  in  its  natural 
place  at  the  end,   though   the  will   were  contained  in  several 

'See    Milton   v.    Hunter,    13    Bush,  '  See  for  details,   Schoul.   Wills,  and 

163;  Schoul.  Wills,   Part    II.,  cs.  9,  10,  cases  cited, 

and  cases  cited.  ■'Grayson  v.   Atkinson.   2  Ves.   454; 

^  I  Wms.  Exrs.  7th  ed.  66-68 ;  Schoul.  Coles  v.  Trecothick,  9  Ves.  259  ;  Adams 

Wills,  part   III.,   c.    2;    Bryce, /«  r^,  2  v.  Field,   21    Vt.  256.     See   Waller  v. 

Curt.  325.     Such  is  the  operation  of  the  Waller,  i  Gratt.  454.     Modern  statutes 

English  statute,  i  Vict.  c.  26,  that  for-  do  not  generally  sanction  such  a  signa- 

mal  execution  was  not  essential  to  wills  ture.     See  i  Vict.  c.  26 ;  Catlett  v.  Cat- 

of  personalty  made  in  England  prior  to  lett,  55  Mo.  330. 

January,    1S38.     This  fact,  already  re-  '  See  i  Wms.  Exrs.  69:1  Redf.  Wills, 

ferred  to,  should  be  kept  in  mind  by  4th  ed.  197;  Schoul.  Wills,  §  311-313. 
the  reader. 

98 


CHAP.   11.]  PROBATE    OK     TIIK    WILL.  §   74 

pages  or  sheets,  provided  that  by  the  handwriting,  the  fastening 
together,  the  verbal  connection  of  words,  or  otherwise,  it  satis- 
factorily appears  that  all  the  pages  or  sheets  were  intended  by 
the  testator  to  be  embraced  by  that  sufficient  signature.'  The 
end  of  the  instrument,  preceding  the  attestation  clause  (if  there 
be  one),  is  the  natural  and  usual  place  of  signature ;  and  the 
Statute  of  Wills  in  England  and  corresponding  statutes  in  some 
American  States  now  make  such  subscription  imperative.- 

The  testator's  name  may  be  written  by  some  other  person, 
if  done  in  his  presence  and  by  his  express  direction,  even  where 
the  testator  does  not  make  his  mark,  as  he  often  may.  This 
sort  of  execution,  however,  in  instruments  so  solemn,  is  so  un- 
usual and  so  objectionable  on  principle,  that  the  fact  and  reason 
for  such  a  proceeding  as,  for  instance,  that  the  testator  was 
maimed  or  paralyzed,  ought,  in  common  prudence,  to  be  made 
clearly  known  to  the  subscribing  witnesses,  and,  moreover, 
might  well  be  expressed  in  the  attestation  clause.  But  where 
the  testator's  signature  was  made  by  another  person  guiding  his 
hand  with  his  consent,  and  he,  being  evidently  clear  in  mind  and 
free  of  volition,  then  acknowledged  it,  the  signing  is  held  to 
be  the  testator's  act,  and  sufficient.^  And,  of  course,  the  testa- 
tor's actual  consent,  and  not  any  alleged  reason  for  signing  by 
another,  is  the  ultimate  fact  upon  which  the  validity  of  these  un- 
usual executions  must  turn.* 

Wills  are  usually  written  out  on  paper  or  parchment,  and 

'And  this,  though  the  attestation  As  to  signing  by  mark,  see  Schoul. 
clause,  through  some  inadvertence,  in-  Wills,  §§  303,  304. 
dicates  that  the  preceding  pages  or  ^Wilson  v.  Beddard,  12  Sim.  28;  i 
sheets  were  severally  signed.  Winsor  Redf.  W^ills,  4th  ed.  205  ;  Schoul.  Wills, 
V.  Pratt,  5  Moore,  484.  And  see  Jones  §§  306-308  and  cases  cited.  "  A.  B. 
V.  Habersham,  63  Ga.  146.  Aliter,  of  for  C.  D."  (C.  D.  being  the  testator) 
course,  if  upon  the  whole  proof  it  ap-  may  thus  be  shown  to  be  a  good  sub- 
pears  that  there  has  been  some  tamper-  scription.  The  evidence  should  not 
ing  with  the  sheets  or  pages  ;  since  only  leave  the  testator's  consent  in  such  a 
that  which  was  intended  to  be  part  of  case  very  doubtful ;  that  the  other 
a  will  at  the  time  of  execution  can  be  wrote  at  his  request  will  not  be  pre- 
probated.  sumed.       Rollwagen   v.    Rollwagen,    5 

^  I    Wms.  Exrs.    67  ;    Schoul.    Wills,  Thomp.     &     C.    402  ;     (Ireenough     v. 

§  312  and  cases  cited;  Stat,  i   Vict.  c.  (ireenough,    11     Penn.    St.    489.       See 

26,  §  9  ;  I  Redf.  Wills,  226.  Schoul.  Wills,  §  30S. 

*  Jenkins,  Will  of,  43  Wis.  610. 

99 


§   75  EXECUTORS    ANM)    ADMINISTRATORS.  [PAKT   II. 

signed  in  ink  ;  but  a  writing  and  signatures  in  lead  pencil  satisfy 
the  statute  requirement,'  as  it  has  been  held,  provided  that  all 
appears  to  have  been  done  with  a  complete  testamentary  pur- 
pose, and  not  by  way  of  mere  draft  or  preliminary  minutes. 
The  use  of  a  seal  in  the  execution  of  a  will  is  now  generally  dis- 
pensed with ;  some  have  thought  it  efficacious  in  a  devise  of 
lands,  however,  and  for  the  execution  of  a  power  specially  re- 
quired to  be  done  under  seal  it  is  still  essential.-  Authorities 
generally  concede  that  sealing  alone  'is  not  a  good  execution 
where  the  statute  calls  for  a  signature.^ 

§  75.  Signing  by  the  Testator;  Subject  continued ;  Publication, 
etc.  —  Presumptions  favorable  to  the  due  execution  of  a  will 
may  be  rebutted.  As  a  general  rule,  however,  the  subscription 
and  execution  of  a  will  in  the  mode  prescribed  by  law  suffi- 
ciently imports  that  it  speaks  the  language  and  wishes  of  the 
testator.-*  But  all  proof  of  a  will  must  consist  with  a  full  com- 
prehension of  its  contents  and  an  intelligent  execution  ;  and 
where  the  testator  was  blind  or  could  neither  read,  write,  nor 
speak,  there  should,  according  to  the  safer  authorities,  be  proof 
not  only  of  \\\q  factum  of  his  will,  but  that  the  mind  of  the  tes- 
tator accompanied  the  execution  ;  and  that  he  knew  and  under- 
stood the  contents  of  the  instrument  as  expressive  of  his  testa- 
mentary intentions.5  If  a  testator  can  read  and  write,  his 
signature,  duly  made,  imports  knowledge  of  the  contents  of  the 
paper  executed  as  his  will ;  in  other  and  peculiar  instances,  the 
proof  of  testamentary  knowledge  and  intent  should  be  clearer, 
though  not  necessarily  conclusive,  nor  upon  the  point  of  doubt 
limited  to  any  particular  fact  or  circumstance  consistent  with 
making  out  2,  prima  facie  case  of  intelligent  execution.''  But 
the  testator's  condition  and  surrounding  circumstances  must  al- 
ways be  considered  ;  and  if,  while  the  testator  is  feeble,  or  hardly 
conscious,  or  of  doubtful  capacity  or  volition,  another  person 

'And  especially  if  the  will  do    not         'i    Jarm.   Wills,   78;   Schoul.   Wills, 
concern  real  estate.     Harris  v.  Pue,  39     §  309  and  cases  cited. 
Md.  535.     See  Schoul.  Wills,  §  258.  *  King  v.  Kinsey,  74  N.  C.  261. 

*i  Redf.    Wills,   4th   ed.   201,    226;         =  Schoul.  Wills,  §  317  and  cases  cited. 

Schoul.  Wills,  §  309.  ''  lb. 

100 


CHAP.    II.]  PROBATE    OF    THK    WILE.  §    'jd 

assumes  the  functions  of  spokesman  and  director  before  the 
witnesses  at  the  execution,  an  adoption,  at  least,  of  that  person's 
acts  on  the  testator's  behalf  must  appear.' 

The  testator  need  not  declare  in  words  to  the  subscribing 
witnesses  that  the  instrument  which  they  arc  called  to  witness  is 
his  will,  though  it  would  be  wise  for  him  to  do  so  ;  but  by  acts 
and  words  he  may  make  it  sufficiently  clear  to  his  witnesses 
that  he  so  accepts  and  regards  the  instrument.-  That  the  tes- 
tator need  not,  and  usually  does  not,  make  known  the  contents 
of  his  will,  at  the  time  of  execution,  is  certain.^ 

§  76.  Proof  of  the  Will;  Subscribing  Witnesses. — Formerly, 
in  England,  as  we  have  seen,  no  witnesses  to  the  execution  or 
publication  of  a  will  of  personal  property  were  considered  essen- 
tial, still  less  any  subscribing  witness  ;  formal  publication  was 
merely  for  convenience.  Wills  of  lands  were,  on  the  other 
hand,  under  the  Statute  of  Frauds,  to  be  attested  and  subscribed 
more  formally,  or,  as  it  was  said,  "  by  three  or  four  credible  wit- 
nesses." Acts  of  Parliament  attempted  another  distinction  with 
reference  to  stock  in  the  public  funds.  But,  under  the  act  of 
I  Vict.  c.  26,  §  9,  no  will  executed  on  and  after  January  i,  1838, 

'  Schoul.  Wills,  §  233.  to  offend  such  persons  as  do  gape  for 
^  Some  cases  justify  a  testator  in  con-  greater  bequests  than  either  they  have 
cealing  that  the  instrument  was  his  will,  deserved  or  the  testator  is  willing  to  be- 
3  Some  of  our  American  statutes  stow  upon  them ;  lest  they,  peradven- 
explicitly  sanction  an  execution  without  ture,  understanding  thereof,  would  not 
any  publication.  In  i  Redf.  Wills,  4th  suffer  him  to  live  in  quiet ;  or  else  he 
ed.  219,  220,  such  a  practice  is  regarded  should  overmuch  encourage  others,  to 
with  disfavor.  In  Trimmer  v.  Jackson,  whom  he  meant  to  be  more  beneficial 
4  Bum.  Eccl.  Law,  9th  ed.  102,  the  than  they  expected;  and  so  give  them 
testator  led  his  witnesses  to  believe  that  occasion  to  be  more  negligent  husbands 
the  instrument  they  executed  was  a  or  stewards  about  their  own  affairs  than 
deed,  not  a  will ;  but  the  execution  was  otherwise  they  would  have  been  if  they 
adjudged  sufficient.  And  see  Schoul.  had  not  expected  such  a  benefit  at  the 
Wills,  §  326.  It  should  be  observed  testator's  hands  (or  for  some  other  con- 
that  Stat.  I  Vict.  c.  26,  §  13,  declares  siderations)."  Swinb.  pt.  i,§ii.  All 
e.xpressly  that  every  ^\■ill  executed  in  the  this  points,  however,  rather  at  disclos- 
manner  prescribed  shall  be  valid  with-  ing  the  contents  of  one's  will,  than  at 
out  any  other  publication  thereof,  his  recognition  of  the  instrument  as 
Swinburne  gives  a  good  reason  why  the  testamentary.  Cf.  New  York  and  New 
testator  might  fail  to  disclose  his  true  Jersey  rule,  Schoul.  Wills,  §  326. 
purpose,  "  because  the  testator  is  afraid 

lOI 


§    'j6  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

can  be  valid,  unless  the  testator's  signature  is  made  or  acknowl- 
edged in  the  presence  of  two  or  more  witnesses ;  and  this  re- 
quirement applies  to  every  descri])tion  of  property,  real  and 
personal.'  Vm  every  testamentary  disposition  of  property,  two 
subscribing  witnesses  are  requisite  at  this  day  in  most  parts  of 
the  United  States  ;  in  Massachusetts  and  several  other  States 
there  must  be  three  ;  while  a  few  States  unwisely  discriminate 
still,  as  between  wills  of  real  and  of  personal  estate.'  The  old 
Spanish  law  which  favored  holograph  wills  (or  such  as  a  testa- 
tor writes  out  in  his  own  hand)  impresses  the  codes  of  some  of 
our  States,  so,  in  some  instances,  as  altogether  to  dispense  with 
subscribing  witnesses  for  such  a  will.^  As  to  witnesses  and  at- 
testation, other  peculiar  provisions,  which  need  not  here  be 
specified,  are  embodied  in  the  legislation  of  individual  States  by 
way  of  exception  to  the  American  rule.'* 

"  Credible  witnesses "  were  required  under  the  Statute  of 
Frauds,  and  "competent  witnesses"  (to  quote  the  language  of 
some  American  codes)  must  still  be  employed. ^  Under  either 
form  of  expression,  persons  must  not  prove  beneficially  inter- 
ested under  the  will ;  and  those  called  in  by  a  testator  to  witness 
an  instrument  whose  contents  he  keeps  to  himself  may  gener- 
ally assume  that  he  has  willed  them  nothing.  A  will  of  free- 
hold estate  attested  by  persons  found  to  be  beneficially  inter- 

'  I  Wms.  Exrs.  7th  eel.  66,  86.  ^  See   .statutes    of    Louisiana,    North 

^  Most  New  England  States  now  insist  Carolina,     Mississippi,    California,    Ar- 

(or  have  done   so    lately)    upon   three  kansas,  Tennessee,  etc.,  as  to  holograph 

witnesses,  as  also  South  Carolina,  Flor-  wills  ;  i  Wms.  Kxrs.  67,  7th  ed.,  note  l)y 

ida  and   Georgia.     In  New  York  two  Perkins;  Schoul.  Wills,  §  255. 

witnesses  suffice,  and  the  same  may  be  ■*  See  i  Wms.  Exrs.  67,  note  by  Per- 

said  of  the  Middle  and  Western  States  kins.     In  Pennsylvania,  for  instance,  it 

quite  generally,    and  such  is  the  later  would  appear  that  reducing  the  will  to 

policy  in  the  majority  of   the    United  writing  in   pursuance  of  the  testator's 

States  as  well  as  in  England.     Except,  directions  is  sufficient ;   that  these  facts 

perhaps,   for  mean  and  sparsely-settled  may  be   proved  by  two  witnesses ;  and 

neighborhoods,  the  practice  of  employ-  that  formal  publication  and  atte.station 

ing  three  witnesses  appears  the  better  by   subscribing  witnesses  are  unneces- 

one,  for  a  testamentary  instrument  be-  sary.     i  Wms.  Exrs.  ib.;  and  see  Schoul. 

comes  thus  readily  distinguished  from  Wills,  §  256,  etc. 

other  formal  writing.s,  and  there  is  less  '  See     i    Wms.    Exrs.    87  ;     Schoul. 

inducement    to     fraud.       See     Schoul.  Wills,  §§  350-358. 
Wills,  §  320. 

102 


CHAP.    II.]  PROBATE    OF    THE    WILL.  §    "J^ 

ested  therein  was  pronounced  invalid  long  ago  ;  and  this  not 
only  as  to  the  part  which  created  their  interest,  but  as  a  whole ; 
and  after  much  controversy,  the  English  courts  appear  to  have 
settled  down  to  the  theory  that  credibility  was  so  fundamental 
to  a  proper  execution,  that  the  release  of  his  interest  by  such  a 
party  at  the  time  of  judicial  inquiry  could  not  restore  his  com- 
petency, nor  the  sufficiency  of  the  will'  Hence,  inasmuch  as 
great  injustice  might  thus  be  done  by  a  witness  unconsciously, 
an  act  whose  provision  by  extension  to  wills  of  both  real  and 
personal  estate,  under  i  Vict.  c.  26,  §  15,^  annuls  the  interest 
of  each  attesting  witness  beneficially  interested,  and  renders  him 
fully  competent  to  prove  the  validity  or  invalidity  of  the  will. 
In  American  States,  correspondingly,  the  local  statute  must  be 
the  guide.^  Disqualification  by  reason  of  interest,  that  common- 
law  doctrine  upon  which  our  later  legislation  so  greatly  infringes, 
has  a  pecuHar  significance  in  the  present  connection  ;  for  the 
public  welfare  still  demands  that  one's  last  wishes  be  authenti- 
cated by  persons  who  are  wholly  detached  from  his  estate,  and 
stand,  so  to  speak,  between  the  dead  and  the  living.  These 
witnesses  are  in  a  measure  judges  of  the  facts  attending  the  ex- 
ecution of  the  only  kind  of  instrument  which  a  principal  signer 
cannot  possibly  take  part  in  estabhshing ;  they  surround  the  tes- 
tator at  a  critical  moment  to  protect  him  from  frauds  which  might 
be  practiced  upon  his  infirmity  or  debility ;  and  hence  they  should 
be  kept  totally  free  from  every  temptation  to  bias  or  importu- 
nity. If  a  person,  called  upon  to  subscribe  as  such  a  witness, 
thinks  the  testator  incapable  of  making  his  will,  he  may  and 
should  refuse  to  attest.'* 

■  I  Jarm.  Wills,  65 ;   Doe  v.   Hersey,  ^  Schoul.  Wills,  §§  350-358. 

4  Burn.  Ecc.  L.  27.  ■♦  See,    on   this  point,    Wilde,    J.,    in 

^  The  ecclesiastical  courts  had  mean-  Hawes  v.  Humphrey,  9  Pick.  356.     On 

time  insisted  that  the  statute  require-  all  these  points  and  the  general  question 

ment  of  "  credible  witnesses  "  was  lim-  of  competency,  see  further  2  Greenl.  Ev. 

ited  in  expression  to  wills  and  codicils  §  691  ;  W^ms.   Exrs.  87,  n.  by  Perkins, 

of  real  estate,  and  had  no   application  citing   numerous    authorities ;    Schoul. 

to  personahy,  wills  of  which  might  be  Wills,  §§  350-358. 

wtnessed  by  legatees,  so  as  to  leave  the  In  the  United  States,  as  in  England, 

legacy  good.     Wms.  Exrs.  7th  Eng.  ed.  competency  has  reference,  not  to  the 

1053  ;  Brett  V.  Brett,  3  Add.  210;  Fos-  time  of  probate,  but  to  the  time  when 

ter  V.  Banbury,  3  Sim.  40.  the  will  was  executed.     Schoul.  Wills, 

103 


§   7^  EXECUTORS    AXD    ADMINISTRATORS.  [PART   II. 

^  yy.  Proof  of  the  Will  ;  Mode  of  Attestation  by  Witnesses. 
—  Like  the  testator  himself,  the  witness  may  sign  by  mark,  by 
initial,  or  by  fictitious  name,  though  not  by' seal  ;  his  hand  may 
be  guided  by  another  if  he  cannot  write  ;  and  the  further  pre- 
cautions against  fraud  correspond  in  the  two  cases.'  The  Eng- 
lish statute  is  so  construed,  however,  as  to  demand  a  literal 
"subscription"  by  the  witness,  in  the  testator's  presence,  and 
after  him,  either  by  name  or  mark  ;  not  permitting  one  to 
adopt  or  acknowledge  a  previous  signature  made  by  himself  or 
by  any  other  person,  as  the  testator  might  do  ;  -  which  rule  most 
American  States  follow,  but  not  all.^ 

Consistent  and  intelligent  execution,  taken  as  a  whole,  and  a 
fair  connection  between  witnesses  and  testator  in  the  legal  for- 
malities, should  appear  under  all  circumstances.'* 

§  78.  Proof  of  the  Will;  Attestation  Clause.  —  A  perfect  at- 
testation clause  must  aid  greatly  in  establishing  the  regularity 
of  a  will,  for  this  affords  plain  written  evidence  of  a  testamen- 
tary execution,  and  freshens  the  memory  on  points  readily  for- 
gotten. The  effect  of  the  statement  in  an  attestation  clause, 
that  the  will  was  signed  by  the  witnesses  in  the  presence  of  the 
testator,  and  of  each  other  and  at  his  request  (or  in  such  other 
language  as  the  statute  may  direct),  would  be  to  throw  the  bur- 
den of  proving  that  it  was  not  so  signed,  and  that  the  execution 

§351.  A  convicted  criminal  is  in  some  ^  Chase  v.  Kittredge,  11  Allen,  49, 
instances  held  to  be  disqualified  from  per  Gray,  J.,  where  the  subject  is  care- 
becoming  a  subscribing  witness  ;  as  well  fully  e.xamined;  Schoul.  Wills,  §  328. 
as  a  young  child  or  idiot,  i  Greenl.  ■•  As  to  the  position  of  signatures  by 
Ev.  §  373.  But  one  competent  at  the  witnesses,  subscribing  in  one  another's 
time  of  execution  would  not  become  presence,  or  in  the  presence  of  the  tes- 
disqualified  because  of  subsequent  crime  tator,  and  other  points  with  regard  to 
or  insanity.  attestation  and  subscription,  see  Schoul. 

'i  Wms.  Exrs.  94,  95;  Ashmore,  Wills.  Part  III.,  c.  3.  Doubtless  a  care- 
Goods  of,  3  Curt.  756;  Chri.stian,  (}oods  ful  counsellor  will  insist,  wherever  he 
of,  2  Robert,  no;  Byrd,  Goods  of,  3  may,  that  witnesses  and  testator  .shall 
Curt.  117;  Thomp.son  v.  Da\?itte,  59  all  execute  in  one  another's  presence, 
Ga.  572  ;  Schoul.  Wills,  §§  331,  332.  and  at  the  same  time;  the  te.stator  first 

"  I     Redf.    Wills,     230,    231  ;    Hind-  writing  out  his  name  and  acknowledg- 

marsh  w.  Charlton,   8  H.   L.  Cas.    160 ;  ing  his  will,  and  the  witnesses  in  turn 

I  Wms.  Exrs.  95, 96;  Eynon,  Goods  of,  suljscribing  aftei-wards  to  a  formal  at- 

L.  R.  3  1'.  &  D.  92,  testation  clause. 

104 


CHAP.  11.]  PROBATE  OF  THE  WILL.  §  79 

was  irregular,  upon  the  opponents  of  the  will,  and  to  discredit  any 
subscribing  witness  who  should  undertake  so  to  testify."  No 
particular  form  of  attestation,  however,  is  requisite  under  the 
English  statute,^  nor  probably  in  most  American  States  ;  but  a 
sufficient  number  of  witnesses  may  subscribe  their  names  with- 
out any  express  attestation  clause  whatever ;  in  which  case  cir- 
cumstantial proof  that  the  attestation  itself  was  proper  may  be 
supplied  at  the  probate  hearing.^ 

Recitals  of  an  attestation  clause  may  supply  the  defect  of 
positive  testimony  as  to  what  transpired  in  connection  with  the 
signature  of  the  testator  and  the  subscription  by  his  witnesses.* 

§  79.  Proof  of  the  Will  ;  Suitable  Testamentary  Condition  on 
the  Part  of  the  Testator. —  Besides  proof  of  a  genuine  execution 
such  as  the  statute  may  have  directed,  on  the  part  of  both  tes- 
tator and  his  witnesses,  the  proponent  of  the  will  must  be  pre- 
pared to  show  affirmatively  that  the  testator,  at  the  time  of  such 
execution,  was  in  a  suitable  testamentary  condition.  Suitable 
testamentary  condition  appears  to  involve  three  prime  elements  : 
(i)  That  the  testator  was  of  sound  and  disposing  mind  and 
memory,  capable  of  understanding  the  nature  of  the  act  he  was 
performing,  and  the  relation  in  which  he  stood  to  the  objects  of 
his  bounty  and  to  those  upon  whom  the  law  would  have  be- 
stowed his  property  had  he  died  intestate.  (2)  That  he  ex- 
ecuted the  will  as  his  own  voluntary  act,  free  from  the  fraud, 
coercion,  or  undue  influence  of  those  about  him.  (3)  That  he 
had  the  testamentary  purpose  in  so  executing,  and  understood 
the  instrument  to  be  his  last  will  and  testament. 5  Where  the 
instrument  presented  for  probate  appears  quite  consistent  with 
all  requirements  in  these  respects,  and  executed  after  the  re- 
quired forms  besides,  a  simple  question  to  the  witness  as  to  the 

'  Schoul.  Wills,  §§  346,  347.     Want  ^  i    Wms.   Exrs.  93 ;   Schoul.    Wills, 

of  recollection  on  the  part  of  the  sub-  §  346.     Thus,  as  in  the  case  of  ordinary 

scribing    witnesses   is    not    enough   to  writings,  the  signatures  may  follow  the 

overcome  the  presumption  arising  from  word  "witness  "  opposite  the  principal 

their  certificate  that  the  facts  were  as  signature,  or,  indeed,  there  may  be  no 

certified.     lb.  word  or  clause  at  all.     lb. 

-  Stat.  I  Vict.  c.  26,  §  9,  is  explicit  on  ■»  Riigc;  v.  Rugg,  83  N.  Y.  592. 

this  point.  ^  Barker  v.  Comins,  1 10  Mass.  477. 

105 


§  79 


EXECUTORS    AND    ADMINISTRATORS. 


[part  11. 


testator's  apparent  soundness  of  mind  may  suffice ;  not  so,  how- 
ever, if  by  cross-examination  of  the  witness,  or  otherwise,  the 
proponent's  case  is  shaken  ;  for  although  an  adult  may  be  pre- 
sumed to  execute  a  writing  while  in  his  senses  and  free  from 
constraint,  the  testamentary  act  is  of  all  acts  liable  to  sinister 
influences  when  performed  by  the  sick,  the  feeble,  or  the  dying. 
And  the  burden  being  accordingly  upon  the  proponent  of  a 
will  to  establish  full  testamentary  condition  and  capacity  in  the 
testator,  no  mere  presumption  of  sanity  and  free  will  can  avail 
as  an  independent  fact  to  overweigh  proof  to  the  contrary  ;  but 
the  issue  in  all  such  contests  is,  whether  the  will  in  question 
was  the  free  act  and  will  of  a  competent  testator.'     Whatever 


'  Since  the  first  edition  of  this  -work 
was  published,  the  present  author  has 
written  a  volume  upon  Wills.  Schoul. 
Wills,  Part  II.,  c.  9.  The  cases  are 
very  numerous  under  the  head  of  testa- 
mentaiy  capacity,  and  are  somewhat 
conflicting,  though  the  safer  conclusions 
reached  appear  those  of  the  text. 
There  may  be  lunatics,  not  from  birth 
alone,  but  made  such  through  disease 
or  decay  ;  persons  insane,  having  lucid 
intervals  ;  monomaniacs,  or  those  dis- 
eased upon  one  or  more  subjects  and 
otherwise  sound.  One  difficult  subject 
discussed  in  connection  with  testamen- 
tary capacity  is  senile  detnentia,  or  that 
decay  which  sets  in  after  one's  full  ma- 
turity. Schoul.  Wills,  Part  II. ;  i  Jarm. 
Wills,  4th  Eng.  ed.  1 31-144.  Drunk- 
enness, so  far  as  it  disorders  one's 
faculties  and  perverts  his  judgment 
as  to  what  he  is  doing,  defeats 
his  will  ;  but  not  habitual  intemper- 
ance alone,  nor  even  the  actual  .stim- 
ulus of  liquor  on  the  particular  occasion. 
Schoul.  Wills,  Part  II.,  c.  7,  and  cases 
cited.  As  to  the  effect  of  religious 
delusions,  modern  spiritualism  and  the 
like,  the  rule  is  not  stated  with  precision, 
judges  themselves  having  various  pre- 
possessions on  issues  of  religious  faith 
and  conscience.  Schoul.  Wills,  §  168. 
The  bearing  of  the  fact  of  suicide  upon 


the  question  of  testamentary  capacity  is 
considered  sometimes.  Schoul.  Wills, 
§  120.  Mental  unsoundness,  years  af- 
ter the  execution  of  a  will,  does  not 
alone  rebut  the  usual  presumption  of 
sanity. 

It  may  be  observed  generally  that, 
notwithstanding  one's  sickness  or  in- 
firmity, his  testamentary  disposition  may 
be  valid,  if,  at  the  time  of  making  it,  the 
testator  had  sufficient  intelligence  to 
comprehend  the  condition  of  his  prop- 
erty, his  relations  to  those  who  were  or 
might  naturally  be  the  objects  of  his 
bounty,  and  to  understand  the  provi- 
sions of  the  instrument.  Testamentary 
capacity  is  the  normal  condition  of  one 
of  full  age.    Schoul.  Wills,  §  68. 

As  to  free  agency,  it  is  recently  ob- 
served that  whatever  destroys  it  and 
constrains  a  person  to  do  what  is  against 
his  will,  and  what  he  would  not  do  if 
left  to  himself,  is  undue  influence, 
whether  the  control  be  exercised  by 
physical  force,  threat.s,  importunity,  or 
any  other  species  of  mental  or  physical 
coercion.  The  state  of  health  and  men- 
tal condition  of  the  alleged  testator 
must  be  considered.  Undue  influence 
is  not  measured  by  degree  or  extent, 
but  by  its  effect ;  if  it  is  sufficient  to  de- 
stroy free  agency,  it  is  undue  even  if  it 
lie    slight.     Schoul.    Wills,    Part    II., 


106 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  80 

goes  to  impeach  the  validity  of  the  instrument  offered  should  be 
open  to  the  fullest  investigation  at  all  contested  hearings ;  and 
the  simple  circumstance  that  the  will  is  partial  and  unreasonable 
in  its  provisions  may,  in  cases  of  doubt,  cause  a  preponderance 
against  its  admission  to  probate,  especially  if  the  party  to  be 
chiefly  benefited  under  it  showed  an  officious  and  unbecoming 
zeal  in  procuring  its  execution.'  And  even  though  courts 
should  rule  so  cautiously  as  seemingly  to  favor  an  unjust  will, 
made  under  circumstances  of  doubtful  propriety,  a  jury  rarely 
sustains  such  a  will ;  and,  after  all,  unless  the  particular  will  be 
established,  the  proponent  loses  his  cause. 

§  80.  Proof  of  the  Will ;  Suitable  Testamentary  Condition  as 
Respects  Legal  Capacity.  —  We  may  add,  as  a  further  element  of 
suitable  testamentary  condition,  what  in  a  single  phrase  is  to  be 
styled  "  legal  capacity."  The  general  rule  is,  that  all  persons 
are  capable  of  disposing  by  will ;  yet  there  are  various  classes  of 
persons  excepted  by  the  law,  not  only  in  this  respect,  but  in  other 
instances  involving  the  jus  disponendi.  Thus,  aliens  have  been 
restricted  by  the  common  law,  and  particularly  in  the  acquisi- 
tion and  transmission  of  real  estate ;  though  these  restrictions, 
which,  as  to  lands,  are  exclusively  of  State  cognizance,  have  been 
removed  in  many  modern  instances,  and  seldom  extended  to  dis- 
positions of  personal  property.^  Infants,  again,  are  wisely  ex- 
cepted by  existing  statutes  both  in  England  and  some  of  the 
chief  American  States,  notwithstanding  the  earlier  doctrine, 
borrowed  from  the  civilians,  which  permitted  males  at  fourteen 
and  females  at  twelve  to  dispose  of  personal  property  by  a  last 

c.    10;    I    Jarm.    Wills,    4th    Eng.    ed.  or  undue  influence,  is  presumed  from 

131-144.     On  the  other  hand,  to  avoid  capacity,  and  the  burden  is  on  those 

a  will  on  the  ground  of  undue  influence,  who  deny  it.     Seepassun  Schoul.  Wills, 

it  must  be  made  to  appear  that  it  was  Part  II.,  c.  10. 

obtained  by  means  of  influence,  amount-  'No  such  circumstance,  by  itself, 
ing  to  moral  coercion,  destroying  free  would  suffice.  The  decisions  upon  con- 
agency  ;  or  by  importunity  which  could  tests  because  of  fraud,  undue  influence, 
not  be  resisted,  so  that  the  testator  was  or  mistake  are  very  numerous, 
constrained  to  do  that  which  was  against  -Co.  Litt.  2  b;  i  Jarm.  Wills,  ed. 
his  actual  will,  but  which  he  was  unable  1861,  35,  60-64;  Schoul.  Wills,  §§  34- 
to  refuse  or  too  weak  to  resist.  Free  36. 
agency  or  freedom  from  coercion,  fraud, 

107 


.§   8 1  EXECUTORS    AND    ADMINISTRATORS.  [PART  11. 

will'  Coverture,  on  the  other  hand,  operated  a  lej^al  disability 
at  the  common  law  which  our  modern  married  women's  acts  are 
fast  superseding.'  Idiots  and  imbeciles  are,  of  course,  incapa- 
ble ;  ^  but  not  the  deaf,  dumb,  or  blind,  who  make  intelligent 
use  of  the  senses  given  them.-^  And  a  long,  but,  happily,  obso- 
lete, list  of  disqualified  persons  is  stated  in  the  earlier  English 
books,  whose  disgrace,  in  this  respect,  attended  their  crime  or 
low  condition,  less,  perhaps,  from  any  consideration  of  unfitness 
in  the  individual  than  for  the  sake  of  enabling  the  crown  to  con- 
fiscate his  chattels  beyond  a  peradventure.5 

§  8  I .  Proof  of  the  Will ;  Testimony  at  the  Hearing.  —  The  law 
confides  so  greatly  in  those  who  were  placed  round  the  testator 
as  subscribing  witnesses,  as  to  permit  them,  whenever  the  tes- 
tator's sanity  is  at  issue,  to  give  their  opinions  upon  that  point  ; 
besides  stating  fully  all  material  circumstances  which  attended 
the  execution  of  the  will  in  question.  But,  if  so  testifying,  they 
may  be  inquired  of  as  to  the  grounds  of  their  opinion  in 
cross-examination,  and  other  evidence  may  be  put  into  the  case 
to  support  or  contradict  them.^  Any  other  person  may  testify 
as  to  the  appearance  of  the  testator  and  as  to  facts  from  which 
the  state  of  his  mind  at  the  date  of  execution  may  be  inferred  ; 
but  the  mere  opinions  of  all  such  witnesses,  who  are  not  experts, 
are  usually  pronounced  inadmissible.  Experts  are  to  be  found 
at  this  day  who  are  examined  on  the  special  subject  of  insanity  ; 

'  I    Vict.  c.  26,  §  7  ;  20  &  21  Vict.  c.  villeins,    captives,     prisoners,    traitors, 

77 ;  4  Kent.   Com.  506,  507 ;    i    Jarm.  felons,    heretics,    apostates,      manifest 

Wills,  39 ;  Schoul.  Wills,  Part  II.,  c.  2.  usurers,    incestuous    persons,    libellers. 

Local  statutes  should  be  consulted  on  suicides,  outlawed  persons,  excommuni- 

such  points.  cated  per.sons,  etc.     Forfeiture  of  one's 

-  Schoul.  Wills,  I'art  II.,  c.  3.  e.state,  even  for  treason,  is,  by  the  more 

■*  Schoul.  Wills,  I'art  II.,  c.  5.  A  per-  enlightened  rule  of  modern  times,  con- 
son  under  guardianship  as  non  co7upos  fined  to  the  life  of  the  offender.  See  2 
is  presumptively,  but  not  conclusively,  Kent  Com.  385,  386 ;  Schoul.  Wills, 
incapable  of  making  a  will.  Hamilton  Part  II.,  c.  i ;  U.  S.  Constitution,  Art. 
V.  Hamilton,  10  R.  I.  538;  Schoul.  III.,  §  3.  And  .see  Wms.  Exrs.  435; 
Wills,  §  8.  and  English  stat.  33  &  34  Vict.  c.  23,  §  i . 

*  Schoul.  Wills,  §  94.  ^2  Greenl.  Ev.  §§  691,  692;  Schoul. 

'Swinburne,   pt.  3,  §   7,  enumerates  Wills,  §§  196-204  ;  Wms.  Exrs.  346,  and 

among  those  legally  disqualified  from  11.  by  Perkins, 
making  a  last  will  and  testament,  slaves, 

108 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  82 

but  an  attending  physician  of  regular  standing  is  commonly  a 
good  enough  expert  to  give  an  opinion  upon  his  patient's  mental 
condition,  and  from  facts  thus  in  proof,  other  experts  may  draw 
conclusions."  Subscribing  witnesses  may  be  summoned  into 
court  and  examined  viva  voce ;  and  the  usual  rules  of  evidence 
which  guide  the  common-law  courts  will  apply  with  the  reserva- 
tions already  stated,  to  their  testimony,  and  the  credit  to  be 
given  it.^ 

A  will  is  not  to  be  defeated  through  the  failure  of  attesting 
•witnesses  to  remember  the  circumstances  of  attestation.  Due 
execution  raises  the  presumption  that  all  was  rightly  done  ;  and 
not  only  is  the  proponent  free  to  aid  the  will  by  other  compe- 
tent proof,  but  (as  these  were  not  essentially  his  own  .witnesses) 
he  may  rebut  the  adverse  testimony  of  subscribing  witnesses, 
and  even  discredit  them.  As  a  general  rule,  one  who  offers  a 
will  must  call  in  all  the  attesting  witnesses,  if  put  to  the  full 
proof,  provided  all  are  alive,  within  reach  of  the  process  of  the 
court,  and  still  competent. ^  But  where  the  witness  is  abroad, 
or  disabled  from  personal  attendance,  his  deposition  may  be 
taken  ;  if  he  has  died  or  become  insane  since  the  attestation,  his 
handwriting  may  be  proved  ;  and  the  utter  impossibility  of  pre- 
senting one's  testimony  being  shown  to  the  court,  the  proof  may 
go  on  without  him.  If  the  legal  execution  of  a  will  be  clearly 
established  alitnidc,  probate  thereof  may  be  allowed  though  all 
the  subscribing  witnesses  were  dead  or  all  should  testify  ad- 
versely. The  testimony  of  subscribing  witnesses  in  short  is  im- 
portant but  neither  indispensable  nor  conclusive.'* 

§  82.  Revocation  or  Alteration  of  Wills  ;  Codicils  ;  Ne'w  Wills, 
etc. —  Every  will  being  revocable  during  the  testator's  lifetime, 
probate  should  be  granted  of  the  instrument  or  instruments 
only  which   constitute  his  last  will.     Accordingly,  in  case  of  a 

'  See  this  subject  at  length,  Schoul.  of  1857  on  this  point,  Wms.  Exrs.  347 

Wills,  §§  204-213.  The  right  to  have  all  the  attesting  wit. 

^  Wms.  Exrs.  345,  346;   Stats.  17  &  nesses  produced  appears  to  exist  for  the 

18  Vict.  c.  47  ;  and  21  &  22  Vict.  c.  77  ;  benefit  of  all  parties  in  interest,  whether 

and  see  Schoul.   Wills,  Part   II.,  cs.  9,  favorable  or  adverse  to  the  will.     But 

10.  the  right  has  its  rational  limits. 

^  See  as  to  effect  of  English  statute         •»  Schoul.  Wills,  §§  177,  17S. 

109 


§   82  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

contest  over  two  or  more  wills,  issue  joins  first  and  most  natu- 
rally on  that  which  was  executed  latest.  Any  distinct  will  pro- 
pounded for  probate,  which  appears  to  have  been  executed  as 
the  statute  requires  and  preserved  intact,  is  presumed  to  express 
the  testator's  latest  wishes ;  but  this  presumption  may  be  re- 
butted by  the  production  of  a  later  will,  or  other  evidence  of  a 
contradictory  nature.  Various  methods  of  implied  revocation 
are  known  to  our  law  ;  such,  for  instance,  as  the  subsequent 
marriage  of  a  single  woman,  or  in  case  of  an  unmarried  man,  his 
marriage  and  the  birth  of  a  child.'  From  other  alteration  of 
the  testator's  circumstances,  revocation  by  parol  was  formerly 
presumed  ;  but  parol  methods  are  discouraged  by  our  later 
English  and  American  legislation,  whose  aim  is  to  specify  clearly 
what  shall  constitute  the  legal  revocation  of  an  existing  will,  and 
to  insist  that  an  actual  revocation  shall  be  plainly  evinced.^ 
"  To  prevent  the  admission,"  says  Chancellor  Kent,  "  of  loose 
and  uncertain  testimony,  countervailing  the  operation  of  an  in- 
strument made  with  the  formalities  prescribed,  it  is  provided 
that  the  revocation  must  be  by  another  instrument  executed  in 
the  same  manner,  or  else  by  burning,  cancelling,  tearing,  or  ob- 
literating the  same  by  the  testator  himself,  or  in  his  presence 
and  by  his  direction.  This  is  the  language  of  the  English  Stat- 
ute of  Frauds,  and  of  the  statute  law  of  every  part  of  the  United 
States."  3 

We  may  add  that  such  acts  of  revocation  must  be  done  with 
corresponding  intent,  and  that  under  the  English  statute  i  Vict, 
c.  26,  §  20,  and  the  latest  American  legislation,  these  principles 
are  extended  (with  literal  variance,  and  saving,  perhaps,  the  ef- 
fect of  marriage,  as  above  stated),  so  as  to  embrace  wills  of 
real  and  personal  property  in  the  fullest  sense.-*  The  object  of 
revocation  may  be  to  substitute  another  will  or  to  adopt  intes- 

'  Wms.   Kxrs.  7th  ed.  187-204.     Va-         ■*  Wms.  Exrs.  127  and  Perkins's  note. 

rious  statute  changes  have  occurred  in  There  are    variations  of  expression  in 

this  connection.     lb. ;  and  see  Schoul.  such  statutes,  which  the  practitioner  is 

Wills,  Part  IV.,  c.    i,  more  fully,  with  bound   to   observe  in  the  case  before 

cases  cited.  him.    As  to  revocation  by  burning,  tear- 

^  Wms.  Exrs.  187,  201  ;  Schoul.  Wills,  ing,  cancelling,  or  obliterating,  see  Wms. 

Part  IV.,  c.  I.  Exrs.  128-158;  Schoul.  Wills,  Part  IV., 

^4  Kent  Com.  520,  521.  c.  i. 

I  10 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  83 

tacy  as  a  condition  preferable  to  testacy ;  and  one  may  revoke  a 
will  by  a  writing  properly  attested,  which  contains  no  disposi- 
tion whatever.' 

Where  the  former  will  is  not  cancelled  or  destroyed  outright 
contemporaneously  with  or  prior  to  the  execution  of  another  — 
a  course  of  proceeding  highly  to  be  commended  in  most  cases 
while  the  testator  retains  his  full  mental  vigor  —  it  becomes 
most  convenient  to  make  an  addition  or  supplement  to  such  for- 
mer will,  observing  the  prescribed  solemnities  of  testamentary 
signing  and  attestation  as  carefully  as  before.  These  testamen- 
tary supplements  are  known  as  codicils,  or  "  Httle  wills  "  ;  and 
the  term  "will"  in  a  statute  being  construed  to- include  all  such 
instruments,  codicils  require  proof  and  a  probate  like  any  other 
testament.  From  a  will  and  its  several  codicils,  like  a  statute 
with  its  later  amendments,  the  maker's  full  intention  is  to  be 
gathered  ;  the  latest  provisions  modifying,  or,  if  need  be,  annul- 
ling the  earlier.  From  a  codicil  distinct  reference  to  the  orig- 
inal instrument  is  desirable,  though  not  indispensable  ;  and  the 
effect  of  a  codicil  which  in  terms  ratifies,  confirms,  and  repub- 
lishes a  will,  is  to  give  the  original  will  the  same  force  as  if  it 
had  been  rewritten,  re-executed,  and  republished  at  the  date  of  the 
codicil.^  A  new,  adequate,  and  complete  will  may  be  held  to  re- 
voke all  former  wills  without  express  words  of  revocation  ;  but 
a  codicil  only  revokes  a  former  will,  as  far  as  it  so  expressly 
provides  or  is  inconsistent  in  terms  with  it  ;  nor,  apparently, 
should  any  will  be  construed  as  revoking  another  still  extant, 
except  so  far  as  really  conflicting  with  it.^  A  codicil  intends 
keeping  the  former  will  extant,  however,  while  a  new  and  com- 
plete will  does  not. 

§  83.    Rule  of  Escrow  not  applicable  to   Wills. —  The  reasons 

'  See  Jessell,  M.  R.,  in  Sotheran  v.     makes   his  last  will  and  testament,  re- 

Dening,  20  Ch.  D.  99,  104.  yoking  all  other  w-ills  by  him   at  any 

^  See  Schoul.   Wills,   Part  IV.,  c.   2,  time    heretofore  made.      And   a  mere 

and  cases  cited.  codicil  by  way  of  amendment  may  well 

3  Schoul.  W^ills,  §  437,  and  cases  cited,  express  that  the  testator  thereby  ratifies 

It  is  usual  and  most  convenient  for  a  and  confirms  his  will  (referred  to)  in  all 

new  will  to  be  drawn  up  so  as  to  express  other  respects, 
on   its   face   that    the   testator   hereby 

1  II 


§   84  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

that  apply  to  other  instruments  on  the  doctrine  of  escrow,  do 
not  apply  to  wills,  unless  possibly  in  the  case  of  what  are 
termed  joint  or  mutual  wills.'  A  will  being  the  act  of  the  tes- 
tator alone  and  requiring  the  assent  of  no  other  person,  delivery 
of  the  instrument  to  any  one  is  not  necessary,  but  a  due  execu- 
tion completes  the  testamentary  act.^ 

§  84.  Lost  Wills ;  Republication  of  "Will ;  Informal  Alterations, 
etc.  —  A  will,  proved  to  have  been  duly  executed,  which  cannot 
be  found  after  the  testator's  death,  is  presumed  to  have  been 
destroyed  by  him  with  the  intention  of  revoking  it.  But  this 
presumption  may  be  rebutted  by  evidence.  Thus  it  may  be 
shown  that  the  will  was  torn  up  or  burned  by  the  testator  in 
some  insane  freak,  or  through  the  coercion  of  another,  or  that 
it  was  accidentally  or  fraudulently  destroyed,  or  that,  the  testa- 
tor recognizing  it  to  the  last,  the  will  must  have  been  lost  or 
else  wrongfully  suppressed  by  some  one.  Those  interested  un- 
der such  a  will  do  not  forfeit  their  legal  rights  by  the  non-pro- 
duction of  the  instrument  in  question,  provided  its  contents  and 
due  execution  be  shown  by  satisfactory  proof,  and  the  absence 
of  the  will  sufficiently  explained.'  Where  only  a  part  of  the 
contents  of  a  lost  will  can  be  proved,  that  part  has  been  held  ad- 
missible to  probate  ;  though  this  seems  an  undesirable  rule  to 
extend  far.''     If  another  person  was  custodian  of  the  will,  and 

'  See  as  to  joint  wills  in  equity,  and  who  have  heard  it  read.  Morris  v. 
wills  upon  consideration  in  general,  I  Swaney,  7  Heisk.  591.  Or  by  other 
Jarm.  Wills,  4th  Eng.  ed.  31  ;  Schoul.  secondary  proof,  such  as  may  suffice. 
Wills,  Part  V.  Schoul.  Wills,  §  402.  Whether  proof 
^  Sewell  V.  Slinguff,  57  Md.  537.  of  a  residuary  bequest  alone  will  suffice, 
^  Idley  V.  Bowen,  11  Wend.  227;  see  Woodward  z/.  Goulstone,  comment- 
Clark  V.  Wright,  3  Pick.  67;  Foster's  ing  on  i  P.  D.  154;  11  App.  469. 
Appeal,  87  Penn.  St.  67  ;  Mercer  v-  *  Sugden  v.  Lord  St.  Leonards,  L. 
Mackin,  14  Bush,  434;  i  Redf.  Wills,  R.  i  P.  D.  154;  Steele  v.  Price,  5  B. 
338-350;  Wms.  Exrs.  153,  378,  379;  Mon.  58.  But  if  wtnesses  differ  mate- 
Harvey,  Goods  of,  I  Hagg.  595  ;  Burls  rially  as  to  some  of  the  provisions  of  the 
V.  Burls,  L.  R.  I  P.  &  D.  472  ;  Voor-  will,  the  will  cannot  be  proved.  Sheri- 
heesz/.  Voorhees,  39  N.  Y.  463;  Ford  v.  dan  v.  Houghton,  6  Abb.  (N.  Y.)  N. 
Teagle,  62    Ind.   61  ;    Johnson's    Will,  Cas.  234. 

Matter   of,    40  Conn.    587  ;   Nelson  v.  The  suspected  custodian  of  a  missing 

Whitfield,  82  N.  C.  46.     Contents  may  will  should  be  cited   into  the    Probate 

be  established  by  testimony  of  witnesses  Court,  as  shown  supra,  §54,   and  rea- 

I  12 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  84 

the  testator  had  not  ready  access  to  it,  there  appears  no  pre- 
sumption that  it  was  destroyed  with  the  intent  of  revoking. 
The  evidence  in  all  cases  of  a  lost  will  should  be  strong,  posi- 
tive, and  not  uncertain.' 

Republication  revives  the  will  to  which  it  refers,  and  its  ef- 
fect is  to  make  the  whole  will  as  of  such  later  date.  A  codicil 
may  thus  republish  an  informally  executed  will,  though  the  act 
must  be  done  with  all  the  statutory  formalities.''  Republication 
may  be  either  the  revival  of  an  instrument  already  revoked  so 
as  to  give  it  full  operation,  or  the  re-execution  of  a  will  with 
similar  intent.^ 

Alterations,  erasures,  and  obliterations  found  in  a  will  should 
be  treated  according  to  circumstances.  If  they  preceded  the 
formal  execution,  they  stand  as  the  final  expression  of  the  tes- 
tator's wishes  ;  but  if  made  afterwards,  the  instrument  in  its 
altered  shape  must  have  been  duly  attested,  or  else  the  altera- 
tion will  fail,  and  probate  be  granted  as  of  a  valid  testament, 
according  to  the  originally  attested  expression.'*  The  effect 
of  obliterating  or  cancelling  should  depend  as  a  rule  upon  the 
testator's  intention  ;  but  partial  revocations  and  changes  infor- 
mally made  as  to  an  executed  will,  our  later  statutes  wholly  dis- 
courage ;  nor  can  there  be  a  valid  cancellation  without  the 
exercise  of  a  free  will  and  a  sound  mind.' 

sonable    exertions   made    to   find    the  ^  i    Redf.    Wills,   376-379 ;     Schoul. 

original  document,  according  to  circum-  Wills,  Part  IV.,  c.  3  ;  Wms.  Exrs.  205, 

stances,  before  probate  can  be  granted  et  seq. 

upon    secondary  evidence  of  the  con-  ^  lb. 

tents.  *  Wms.  Exrs.  143-153  ;  Schoul.  Wills, 

'  Schoul.  Wills,  §  402.     A  lost,  sup-  Part  IV.,  c.  2. 

pressed,  or  destroyed  will  may  be  pro-  ^  While  wills  of  personalty  might  be 

bated,  no  statute  prohibiting,  or  may  be  informally    executed,    before    the    new 

established  by  a  court  of  equity.    Dower  statute  of  Victoria  came  into  operation 

V.  Seeds,   28  W.  Va.    113.      The  con-  in    1838,   there   were    various    English 

tents  of  such  a  will  may  be  proved  by  decisions  which  permitted  a  testator  to 

the  satisfactory  testimony  of  a  single  revoke  his  will /;-^ /r?;/^'^  by  striking  out 

person.      But    the   proof    of    contents  particular  sentences  or  paragraphs  with- 

ihoiild  be  clear.     So  must  suitable  no-  out  other  formality.      See  Wms.  Exrs. 

tice  be  given  to  interested  parties  or  143.    Modern  legislation  treats  informal 

their   assent  obtained.   (1896)   P.    289;  alterations  with  disfavor.  Schoul.  Wills, 

Schoul.  Wills,  §  402.  §§  382,  432 ;  supra,  §  82. 

8  113 


§   85  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

§  85.  Probate  in  Whole  or  in  Part. —  It  follows  from  the  pre- 
ceding summary  of  principles  which  writers  on  the  law  of  wills 
treat  at  full  length,  that  probate  of  a  will  may  require  a  nice 
judicial  discrimination.  To  identify  and  record  as  genuine  the 
last  will  and  testament  of  the  deceased  is  the  peculiar  province 
of  the  probate  court ;  and  the  probate  of  a  will,  not  appealed 
from,  or  confirmed  upon  appeal,  settles  all  questions  as  to  the 
formalities  of  its  execution  and  the  capacity  of  the  testator,  but 
not  the  validity  or  invalidity  of  any  particular  bequest,  nor  any 
question  of  construction."  To  construe  a  will  duly  probated, 
and  define  the  rights  of  parties  in  interest,  remains  for  other 
tribunals  ;  they  must  interpret  the  charter  by  which  the  estate 
should  be  settled  in  case  of  controversy  ;  while  the  probate 
court,  by  right  purely  of  probate  or  ecclesiastical  functions,  es- 
tablishes and  confirms  that  charter.  But  in  order  to  do  this, 
the  probate  tribunal  throws  out  the  false  or  the  superseded  will, 
or  the  instrument  whose  execution  does  not  accord  with  positive 
statute  requirements  ;  it  determines  what  writing  or  writings 
shall  constitute  the  will.  Moreover,  in  numerous  instances,  the 
English  rule  has  been,  that  a  will  may  be  in  part  admitted  to 
probate  and  in  part  refused  ;  as,  for  example,  where  some  clause 
has  been  fraudulently  inserted  in  the  will  without  the  testator's 
knowledge  and  free  consent,  or  in  other  instances  of  illegal  and 
improper  alteration,  after  the  will  was  formally  signed  and  at- 
tested.- Where  the  executor  was  misdescribed  or  imperfectly 
described,  to  ascertain  his  identity  may  be  incidental  to  grant- 
ing the  proper  letters  testamentary.^  The  probate  tribunal 
may,  from  the  best  proof  afforded,  gather  and  set   forth  the 

'  Hawes  v.  Humphrey,  9  Pick.  350.  the  estate,  may  be  excluded  from  the 

And  see    Schoul.   Wills,   §§  223,  248-  probate.     Ilonywood,  Goods  of,  L.  R. 

251.     As  to  full  or  partial  probate  in  2  P.  &  D.  251  ;   i    Robert.  423;    Wms. 

case  of  error,  see  ib.  §§  216-219.  Exrs.  378.      And    as    to  a    particular 

^  Wms.    Exrs.    377,    378;    Plume    v.  bequest    procured  by  undue  influence, 

Beale,   i    P.   Wms.   388;  Allen  v.   Mc-  see  Fulton  v.  Andrew,  supra;    Harri- 

Pherson,  i    II.  L.   Cas.  191  ;  Hegarty's  son's  Appeal,  48  Conn.   202.     A  word 

Appeal,  75   Penn.  St.  514;   Welsh,  In  mistakenly  introduced  into  a  will  may 

re,  I  Redf.  Sur.  238  ;  Fulton  v.  Andrew,  be  stricken   out  in  the  probate.     Mor- 

L.  R.  7  H,  L.  448.     Scnible  that  in  the  rell   v.   Morrell,   7  P.   D.  68.     And  see 

English  probate,  scurrilous  imputations  Schoul.  Wills,  §§  248-250. 
in  a  will,  not  affecting  the  dispo.siiion  of         '  Shut  tleworth.  Goods  of,  i  Curt.  911. 

114 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  85 

items  of  a  will  which  has  been  lost  or  accidentally  destroyed,  or 
rendered  illegible,  so  far  as  the  last  wishes  of  the  testator  may 
thus  be  established  with  certainty."  But  jurisdiction  to  sepa- 
rate the  false  from  the  true  and  except  special  clauses  from  pro- 
bate, is  to  be  exercised  with  the  utmost  prudence ;  and  in  Eng- 
land the  spiritual  courts  could  not,  even  by  consent,  expunge 
material  passages  which  the  testator  intended  should  make  part 
of  his  will,  nor  substitute  names,  nor  identify  legatees,  nor  make 
the  probate  an  occasion  for  commentary  upon  the  testator's 
text ;  ^  while  in  this  country  the  usual  tenor  of  the  decisions  is 
to  require  probate  to  be  granted  of  a  testamentary  instrument, 
as  it  stood  when  duly  signed  and  attested,  but  otherwise  with- 
out ruling  out  one  part  of  it  or  another.^ 

A  partial  probate  assumes  that  the  instrument  executed  by 
the  testator  contained  a  false  part  which  was  so  distinct  and 
severable  from  the  true  part,  from  that  which  was  his  will,  that 
the  rejection  of  the  former  does  not  alter  the  construction  of 
the  true  part.  But  where  the  rejection  of  words  or  a  clause 
necessarily  alters  the  sense  of  the  remainder  of  the  will,  the 
question  is  more  difficult  ;  for  even  though  the  court  be  con- 
vinced (to  use  the  words  of  Lord  Blackburn)  that  the  words 
were  improperly  introduced,  so  that  if  the  instrument  was  inter 
vivos,  they  would  reform  the  instrument  and  order  one  in  dif- 
ferent words  to  be  executed,  they  cannot  make  the  dead  man 
execute  a  new  instrument.-*  There  is  no  difference,  at  all 
events,  between   the  words  which  a  testator  himself  uses  in 


'  Trevelyan  v.  Trevelyan,  i   Phillim.  Hegarty's   Appeal,   75    Penn.    St.    50J. 

149  ;  Wms.   Exrs.  380-382  ;   Sugden  v.  But  cf.  Welsh,  In  re,  i    Redf.    (N.    \ .) 

Lord  St.  Leonards,  L.  R.  i  P.  D.  154;  238.     And  as  to  probate  of  a  lost  -will, 

Rhodes  v.  Vinson,  9  Gill,  169.  of  which  some  parts  cannot  be  proved, 

^  Notes  of  Cas.  278  ;  Wnas.  Exrs.  378,  see  Steele  v.  Price,  5  B.  Mon.  58.     Pro- 

379 ;  Curtis  v.  Curtis,  3  Add.  t^t^.  bate  of  a  lost  ^\-ill  should  be  granted  as 

^  If  a  will  may  take  effect  in  any  part,  it  existed  in  its  integral  state  if  this  can 

it  may  be  admitted  to  probate  although  be  ascertained.     Scruby  v.  Fordham,  i 

indefinite   in    other  parts.      George  v.  Add.  74. 

George,  47    N.    H.   27.     Probate  of  a  ■*  See  Rhodes   v.    Rhodes    (1882),  7 

will  which  contains  illegal  and  void  be-  App.  Cas.   192,  198.       Qticere  whether 

quests  may  be  general,  and  without  res-  there  is  in  such  a  case  a  valid  will  within 

ervation  of  such  parts.     Bent's  Appeal,  the  meaning  of  the  statute.     lb. 
35     Conn.     523;    s.  C.    38     Conn.     26; 


§   87  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

drawing  up  his  will  and  the  words  which  are  bona  fide  used  by 
one  whom  he  trusts  to  draw  it  up  for  him  ;  and  the  will  in  either 
case  must  be  probated  and  construed  as  it  reads.'  And  while 
words  or  a  clause  introduced  into  a  will  fraudulently,  or  simply 
without  the  testator's  knowledge  or  authority,  may  be  stricken 
out,  the  probate  admitting  of  such  a  severance  without  doing 
violence  to  the  rest  of  the  will,  partial  changes  cannot  be  made 
in  the  probate  where  the  testator  knew  and  virtually  adopted 
the  words  or  clause.'  In  general,  a  full  probate  does  not  insure 
against  a  partial  failure  in  effect.^ 

§  86.  Probate  in  Fac-Simile,  or  by  Translation. —  According  to 
English  practice  under  the  statute  i  Vict.  c.  26,  if  a  will  pre- 
sented for  probate  contains  upon  its  face  an  unattested  altera- 
tion or  obliteration,  the  change  must  be  accounted  for  ;  and  if, 
upon  full  proof,  the  will  appears  to  have  been  executed  before 
the  alteration  was  made,  jjrobate  may  te  engrossed  as  if  the 
change  had  not  occurred,  unless  it  appears  likely  that  the  con- 
struction of  the  will  might  be  affected  by  the  appearance  of  the 
paper,  in  which  case  a  probate  \\\  facsimile  is  decreed.-* 

Where  a  will  is  written  in  a  foreign  language,  probate  may 
be  granted  with  an  accompanying  translation. s 

§  87.  Probate  of  Two  or  More  Testamentary  Papers;  Grant  to 
Executors.  Probate  is  not  necessaiily  confined  to  a  single  in- 
strument ;  but  several  papers  may  be  found  to  constitute  alto- 
getlier  the  last   will  of  the  deceased,  and  be  entitled  to  pnjuate 

'  Rhodes  V.  Rhodes,  7  App.  Cas.  letters  to  the  right  person.  ('oo])er's 
192.  Goods,  (1899)  P.  193. 

==  See  Harter  v.  Harter,  L.  R.  3  P.  "  Gann  v.  (Gregory,  3  De  G.  M.  &  G. 
&  M.  II,  22 ;  Schoul.  Wills,  §  249.  777  ;  Wms.  E.xrs.  331,  332. 

3  P'or  probate  of  an  altered  will,  see  '  Wms.  Exrs.  386.  In  such  case  it 
also  Schoul.  WilKs,  §§  434,  435.  And  seems  proper  that  original  and  transla- 
as  to  probate  of  joint  or  mutual  wills,  tion  .should  pass  to  probate  together;^ 
see  ib.  §§456-459.  Where  the  will  gave  the  original  serving  as  the  test,  should 
the  wrong  surname  to  the  executor,  the  questions  of  interpretation  arise  in  other 
court  corrected  the  probate  and  issued     courts.  See  L'Fit  v.  L'Batt,  i    P.  Wms. 

526. 
116 


CHAP.  II.]  PROBATE  OF  THE  WILL.  §  89 

accordingly  ; '  and  letters  testamentary  may  be  granted  to  all  the 
executors  named  in  the  several  papers.^ 

Probate  granted  once  at  the  domicile  inures  to  the  benefit  of 
all  who  may  be  appointed  within  the  domestic  jurisdiction  to  ex- 
ecute the  will  and  administer  the  estate.^  And  though  differ- 
ent executors  be  designated  by  the  will  to  serve,  with  distinct 
powers,  or  for  different  periods  of  time,  but  one  proving  of  the 
will  is  requisite,'' 

§  88.    Decree  of  Probate  entered;  Public  Custody  of  the  Will. 

—  The  general  form  of  decree  recites  the  admission  of  the  will 
to  probate,  with  perhaps  the  citation  of  kindred  and  procedure 
under  the  proponent's  petition  ;  it  embraces  usually  the  appoint- 
ment, besides,  of  the  executor  or  an  administrator  with  the  will 
annexed.  The  will  having  been  proved,  the  original  is  deposited 
in  the  archives  of  the  registry,  and  a  copy  entered  upon  the 
records ;  an  attested  copy  being  also  delivered  to  the  duly  qual- 
ified executor  or  administrator  with  his  letters,  as  constituting 
the  full  credentials  of  his  official  authority. 5  Where  the  orig- 
inal probate  was  lost,  the  spiritual  court  granted  no  second  pro- 
bate, but  furnished  an  exemplification  from  the  records;^  and 
in  American  practice,  at  this  day,  certificates  under  seal  are  reg- 
ularly furnished  by  the  registrar  of  probate  as  the  convenience 
of  individuals  may  require.^ 

§  89.  Nuncupative  Wills.  —  It  remains  to  speak  of  nuncupa- 
tive wills,  or  those  which  consist  in  a  verbal  disposition  by  the 
testator  in  presence  of  witnesses.     In  early  times  such  wills 

'  Wms.  Exrs.  107,  and  note  by  Per-  ■•  Wms.    Exrs.    382;    i    Freem.    313; 

kins;  Harley  v.  Bagshaw,  2  Phillim.  48  ;  Bac.  Abr.  Exrs.  C.  4. 

Tonnele  v.  Hall,  4  Comst.  440 ;  Phelps  '  See  Wms.  Exrs.  385,  386,  as  to  the 

V.  Robbins,  40  Conn.  250.  English  practice. 

'^  Morgan,  Goods  of,  L.  R.   i  P.  &  D.  ^  Wms.  Exrs.  386;  i  Stra.  412. 

323.     Cf.,  however,  as  to   the  probate  ^  As  to  transcript    of  the  record  of 

where  different  executors  were  appointed  probate  of  a  will  devising  land  and  its 

for  different  countries,  Astor,  Goods  of,  effect  in  ejectment,  see  Allaire  v.  Allaire, 

1  P.  D.  150.     See  also  Schoul.   Wills,  37    N.  J.   L.   312.     Death  of  a  person 

§  280.  presumptively  established  by  production 

^Watkins    v.    Brent,    7    Sim.    512;  of  the  probate,  etc.     Carroll  7'.  Carroll, 

Wms.  Exrs.  382.  6   Thomp.  &    C.    294.       Where  letters 

117 


§   89^  EXECUTORS    AND    ADMINISTRATORS,  [PART  II. 

were  as  to  personal  estate  quite  efficacious  ;  but  under  the  Stat- 
ute of  Frauds  and  the  Wills  Acts  of  later  date,  the  privilege 
has  become  restricted  almost  exclusively  to  soldiers  in  actual 
military  service  and  mariners  at  sea.  The  unwritten  wills  of 
soldiers  and  sailors,  however,  have  long  been  distinguished  from 
wills  technically  nuncupative ;  which  last,  so  far  as  the  legisla- 
tion of  any  State  may  still  permit  of  their  operation,  cannot  be 
held  good,  under  the  Statute  of  Frauds,  except  for  a  specified 
small  amount,  nor  unless  made,  moreover,  in  presence  of  a  suf- 
ficient number  of  oral  witnesses,  and  usually  at  home,  and 
moreover,  being  soon  after  put  in  writing.'  But  the  Statute  of 
Frauds  expressly  excepted  the  wills  of  soldiers  in  actual  service 
and  mariners  at  sea  from  these  formalities  ;  and  hence  to  such 
wills  the  common  law  applies  as  it  stood  before  this  enactment, 
allowing  great  indulgence  where  men  exposed  to  sudden  death 
so  far  from  home  chose  to  make  final  disposition  of  their  per- 
sonal property,  whether  the  last  wishes  were  expressed  by  some 
writing,  informally  executed,  or  by  word  of  mouth.''  All  nun- 
cupative wills  are  established  in  probate  by  convenient  proof  of 
the  testator's  expressed  wishes  under  appropriate  circumstances, 
and  while  in  testamentary  condition,  strict  proof  being  re- 
quired.^ 

§  89(7.    No  Injunction;  Effect  of  Probate. —  Such  is  the  exclu- 
sive jurisdiction  of  probate  courts,  in  the  first  instance,  over  all 

testamentary  were  issued  and  a  record  Massachusetts,  similar  to  i  Vict.  c.  26. 

made  of  the  executor's  appointment,  the  But   in  some   States  nuncupative  wills 

appointment    is    not    vitiated    by    the  appear  still  to    be  allowed,  subject  of 

clerk's  failure  to  record  the  letters  testa-  course  to  statute  restrictions  borrowed 

mentary.  Wright  v.  Mongle,  10  Lea,  38.  from  Stat.  29,  Car.  II.     Schoul.  Wills, 

'  Stat.  29  Car.  II.  c.  3,  §§  19-23;  2  Part  III.,  c.  4. 

Bl.  Com.  501.     I    Vict,  c  26,  §  11,  cuts  The  ground  in  general,  of  admitting 

off  the  general  right  of  disposing,  even  nuncupative  wills  to  stand,  appears  to 

under  restraints,  by  a  nuncupative  will,  be  that  the  deceased  had  not  time  nor 

^  As  to  nuncupative  wills,  see  at  length  fair  opportunity  to  reduce  his  will  to 

Schoul.  Wills,  Part  III.,  c.  4,  and  cases  writing  before  he  died, 

cited;  Wms.  Exrs.   116-123,394.     The  ^i    Redf.    Wills,     184-201;    Schoul. 

provisions    of    the  English  Statute  of  Wills,    §    378;    Wms.    Exrs.    11 6-1 23. 

Frauds  have  been  generally  re-enacted  And  see  as  to  "oral  wills,"  Mulligan  z/. 

in  American  States;  and  so,  too,  later  Leonard, 46  Iowa, 692. 
acts  are  found,   as  in  New   York   and 

118 


CriAP.   II.]  PROBATE    OF    THK    WILL.  §   Sgn 

probate  of  wills,  that  a  court  of  equity  cannot  interfere  by  in- 
junction to  prevent  an  alleged  will  from  being  offered,  nor 
otherwise  obstruct  the  probate  court  in  its  primary  discretion,' 
The  effect  of  probate,  indeed,  aside  from  the  issue  of  testa- 
mentary credentials  to  an  executor,  is  to  authenticate  the  for- 
mal disposition  made  by  decedent  as  his  last  will,  with  all  due 
formalities.  But  as  to  the  decedent's  title  to  property,  or  his 
right  to  dispose,  as  declared  by  him,  or  the  legal  meaning  or  ef- 
fect of  the  instrument  itself,  the  probate  decides  nothing,  but 
leaves  all  interested  parties  to  settle  such  controversies  by  other 
proceedings,  based  upon  the  fact  of  such  probate.'' 

'  Israel  v.   Wolf,    loo  Ga.  339.     See  tract  to  dispose  of  his  property  differ- 
also  as  to  Federal  courts,  §  29.  ently,  or  that  the  will  offered  revokes  a 

^Sumner  v.   Crane,   115   Mass.    483,  will  made  upon  contract  consideration, 

and  cases  cited.     Hence  probate  is  not  See  §§  160,  161  ;  Schoul.  Wills,  §§  456- 

to  be  restrained  by  the  objection  that  459. 
the  decedent  had  bound  himself  by  con- 

119 


§  90  EXECUTORS    AND    ADMINISTRATORS.  [pART  11. 


CHAPTER  III. 

APPOINTMENT    OF     ORIGINAL     AND     GENERAL     ADMINISTRATORS. 

§  90.  Original  artd  General  Administration  granted  wherever 
there  is  no  Executor,  etc. ;  Origin  of  this  Jurisdiction.  —  The  g^rant 
of  original  and  general  administration  by  a  probate  court  cor- 
responds to  that  of  letters  testamentary  issued  to  an  executor  ; 
its  application  being,  however,  in  cases  where  a  deceased  person 
whose  estate  should  be  settled  either  died  wholly  intestate  or 
left  a  will  of  which,  for  some  reason,  no  one  can  be  a  qualified 
executor  within  the  jurisdiction.  According  to  the  various  cases 
which  may  arise,  there  are  various  special  kinds  of  administra- 
tion, besides  what  may  be  termed  "  general  administration." 

Anciently,  as  we  have  seen,  it  was  regarded  in  England  as  a 
prerogative  of  the  crown  to  seize  upon  the  goods  of  one  who 
had  died  intestate,  and  dispose  of  them  for  the  benefit  of  his 
creditors  and  family  ;  but  the  prelates,  being  afterwards  intrusted 
with  these  functions,  appropriated  a  large  part  of  such  estates 
upon  the  pretence  of  pious  uses,  until  Parliament  interposed 
and  required  them  thenceforth  to  depute  administration  to  "  the 
next  and  most  lawful  friends  of  the  dead  jierson  intestate,"  who 
should  be  held  accountable  to  the  ordinaries,  and  in  com- 
mon-law courts  in  the  same  manner  as  executors.'  Hence 
originated  the  office  of  administrator  in  the  modern  sense  of  our 
law  ;  and  estates  testate  and  intestate  becoming  thus  assimilated, 
ecclesiastical  courts  were  taught  to  confine  their  jurisdiction  to 
issuing  the  credentials  of  title  and  authority  in  either  case  under 
fixed  and  uniform  rules,  and  to  supervise  without  meddling  in 
the  active  management  of  the  affairs  of  the  dead.  Finally,  in  Eng- 
land, as  in  the  several  United  States,  the  whole  authority  as  to 
probate,  and  the  settlement  of  the  estates  of  deceased  per.sons, 

'  Sit/>ni,  §  7  ;    Wms.  Exrs.  401-404  ;  31  Echv.  3,  c.  1  i,  §  i  ;   2  1^1.  Com.  495. 

120 


CHAP.    III.]  APPOINTMENT    OF    ADMINISTRATORS.  §  9 1 

departed  from  ecclesiastical  control  and  became  vested  in  re- 
sponsible civil  tribunals,  known  most  commonly  as  courts  of 
probate,  and  exercising  what  is  usually  styled  "probate  juris- 
diction." ■ 

§  91.  Intestacy  Fundamental  to  the  Grant  of  General  Adminis- 
tration ;  Death  and  Domicile  or  Local  Assets.  —  To  the  grant  of 
general  and  original  administration  upon  the  estate  of  a  de- 
ceased person,  intestacy  is  a  prerequisite  ;  such  allegation  should 
be  made  in  the  petition,  and  the  court  should  have  reason  to 
believe  the  statement  true.^  Letters  of  general  administration, 
granted  during  the  pendency  of  a  contest  respecting  the  probate 
of  a  will,  or  after  probate,  regardless  of  the  executor,  are  null 
and  void.^  And  local  statutes  interpose  reasonable  delay  to 
such  grants  of  administration,  in  order  to  give  full  opportunity 
for  the  production  of  a  will,  so  that  the  estate  may  be  generally 
committed,  if  possible,  according  to  the  last  expressed  wishes  of 
the  deceased. 

Death  of  the  intestate  is  of  course  a  fundamental  require- 
ment,'' and  the  grant  of  administration  to  any  one  is  prima 
facie,  though  by  no  means  conclusive  evidence,  that  the  death 
has  actually  occurred.^ 

So,  too,  as  in  the  probate  of  a  will,  primary  jurisdiction  should 
be  taken  in  the  county  where  the  deceased  was  domiciled  or  re- 
sided at  the  time  of  his  death. ^  But,  inasmuch  as  public  law 
treats  the  gathering  in  of  a  dead  person's  property  as  a  matter 
of  mutual  convenience  to  creditors,  kindred,  and  the  State  or 
Sovereign,   statutes   now  in  force  in   most  civilized   States  or 

■  Part  I.;  Wms.  Exrs.  401-404  ;  Eng-  ings  Bank,  3  Allen,  87  ;  Devlin  v.  Com- 

llsh   Stat.  29  &  21    Vict,  c  77  (court  of  monwealth,  loi  Penn.  St.  273;  D'Arus- 

probate  act  of  1857).  ment  v.  Jones,  4  Lea,  251. 

^  Bulkley  v.   Redmond,  2  Bradf.  Sur.  '  Monroe  v.  Merchant,  26  Barb.  383  ; 

281.  Simsz/.  Boynton,  32  Ala.  353;  Peterkin 

^Slade  V.   Washburn,    3    Ired.    557;  v.  Inloes,  4  Md.  175;  Moore  v.  Smith, 

Ryno  V.  Ryno,   27  N.  J.   Eq.  522;  Lan-  11  Rich.  569;  §  55. 

ders  z/.  Stone,  45  Ind.  404;   Watson  t/.  ^This,  if  the  decedent's  domicile  be 

Glover,  77  Ala.  323.     But  see  post,   §  other^^^se    uncertain,    is    generally   as- 

135,  as  to  letters  of  special  administra-  sumed  as  in  the  State  or  county  where 

lion.  he  died.     Leake  v.  Gilchrist,  2  I)ev.  73. 

■•§  I   a;   Jochumsen  v.    Suffolk   Sav- 

121 


§  92  EXECUTORS    AND    ADMINISTRATORS.  [PART  ll. 

countries  expressly  provide  for  administration  upon  the  estate  of 
persons  who  die  resident  abroad,  leavin<j  property  to  be  admin- 
istered within  the  domestic  jurisdiction.  In  such  a  case,  the 
grant  having  no  extra-territorial  force,  and  the  State  show- 
ing solicitude  for  the  rights  of  foreign  parties  in  interest,  if  there 
be  such,  the  existence  of  boiia  notabilia  or  local  assets  is  taken, 
nevertheless,  to  confer  the  jurisdiction,  regardless  of  domicile.' 
Hence  original  general  administration  may  be  granted  upon 
either  of  two  distinct  grounds  :  (i)  last  domicile  or  residence  ; 
or  (2)  in  case  of  non-residence,  assets  within  the  local  jurisdic- 
tion of  State  or  country.  But  as  far  as  a  certain  State  or  coun- 
try is  concerned,  the  county  of  last  domicile  or  residence  of  the 
decedent  is  the  appropriate  one.^ 

§  92-  Presumption  favors  Jurisdiction  where  the  Grant  is  con- 
ferred ;  but  the  Fundamental  Facts  must  exist.  —  In  general,  the 
county  court  of  probate  will  be  presumed  to  have  exercised  its 
jurisdiction  lawfully  and  upon  satisfactory  evidence  of  the  essen- 
tial facts.  And  this  jurisdiction  is  not  usually  to  be  attacked  in 
collateral  proceedings,  but  the  order  granting  administration 
must  be  reversed  on  appeal,  or  the  letters  themselves  revoked 
or  vacated.^  But,  if  the  person  upon  whose  estate  letters  were 
issued  proxies  not  to  have  died  in  fact,  the  grant  is  without  juris- 
diction.''    Nor  can  a  county  court  rightfully  grant  administration, 

'See  post,^%  116,    117,  as    to  public  Wetmore,   58    lo-wa,    170.     But    as   to 

administrators ;  supra,  §  24  ;  Wilkins  v.  statute   claim    for    damages   solely  for 

Ellett,  108  U.  S.  256;  Little  v.  Sinnett,  benefit  of  widow  and   next  of  kin,  see 

7    Iowa,  324.     Generally,   personal   es-  Perry  v.  St.  Joseph  R.,  29  Kan.  420. 

tate  is  requisite  for  conferring  such  jur-  ^  Sometimes  by  statute  declared  the 

isdiction;  or  estate,  at  least,  which  in  a  county     of     "exclusive     jurisdiction." 

due  course  of  administration  would  be  King's  Estate,  105  Iowa,  321. 

converted  into  personalty.     Crosby  v.  ^  Roderigas  v.   East    River    Savings 

Leavitt,  4  Allen,  410;  Grimes  v.  Tal-  In.st.,  63  N.  Y.  460:46   N.  J.  L.   211  ; 

bert,  14  Md.  169;  Thumb  v.  Gresham,  2  Ilobson  v.  Ewan,  62  111.  146  ;  McFeeley 

Met.    (Ky.)    306;    Jeffersonville   R.    7>.  v.  Scott,  128  Mass.  16;  §  160. 

Swayne,    26    Md.    474;    Boughton    v.  ■•  Jochumsenz^.  Suffolk  Savings  Bank, 

Bradley,    34    Ala.    694 ;  sttpra,    §    28.  3  Allen,  87  ;  Moore  v.   Smith,   1 1  Rich. 

Land  may  be  regarded  as  "  assets  "  un-  569;   Hooper  t.   Stewart,  25   Ala.  408  ; 

der  a  statute  conferring  local  jurisdic-  D'Arusment  z/.  Jones,  4  Lea,  251.     The 

tion.     Bishop  v.  Lalonette,  67  Ala.  197  ;  person  whose  estate  was  committed  to 

Temples  v.  Cain,  60  Miss.  478;  Lees  v.  administration  may  claim,  if  alive,  that 

122 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §  93 

unless  either  the  deceased  was  domiciled  (or  resident)  therein, 
at  the  time  of  his  decease,  or,  if  a  non-resident  of  the  State  or 
country,  has  left  suitable  property  in  the  county  to  be  adminis- 
tered upon.' 

§  93.   Value  or  Kind  of  Estate,  whether  Fundamental. —  Under 

some  American  statutes  a  limitation  of  value  is  set  to  the  grant 
of  original  administration,  so  that  the  court  cannot  grant  letters, 
unless  there  appears  to  be  estate  of  the  deceased  amounting,  at 
all  events,  to  a  specified  sum,  as  for  instance  twenty  dollars,  or 
unpaid  debts  of  that  value. ^  But  apart  from  express  acts  of 
this  tenor,  no  such  particular  amount  appears  requisite ;  and  in 
Massachusetts,  legislation  restrains  only  the  grant  of  adminis- 
tration dc  bonis  non  in  this  manner.^  Where  there  are  debts 
due  from  the  estate,  and  no  personal  property  but  only  real 
estate  left  by  the  deceased,  there  is  usually  a  probate  jurisdic- 
tion, provided  the  real  estate  can  be  made  to  respond  for  such 
debts.'*  In  general,  the  existence  of  assets  within  the  State  or 
country  is  essential  only  when  the  jurisdiction  concerns  the 
estate  of  a  non-resident  deceased  person  ;  the  situation  of  estate 
being  here  the  test,  but  in  principal  grants  simply  the  last  resi- 
dence or  domicile  of  the  deceased. s 

Administration  may  be  granted  for  procuring  assets  by  litiga- 
tion, on  behalf  of  creditors  for  instance,  who  seek  to  set  aside  a 

his   property   was   taken   wthout    due  jurisdiction,   see  supra,  §  26.     And  see 

process   of   law.     Labin    v.    Emigrant  Paul    v.    Willis,  (Tex.)    7    S.  W.    357 ; 

Bank,     18    Blatchf.    i;    Burns   v.    Van  Moore  z/.  Moore,  33  Neb.  509. 
Loam,  29  La.  Ann.  560.     Sentence  of         ^  Bean  v.   Bumpus,  22    Me.  549;  81 

a  person  to  imprisonment  for  life  does  Me.  207. 

not  justify  the  grant  of  administration         ^  Pinney  v.  McGregory,  102  Mass.  89, 

upon    his    estate    as    of    one    "civilly  /£•;- Gray,  J. ;  Jochumsen  j/.  Willard,   3 

dead."     Frazer   v.    Fulcher,     17    Ohio,  Allen,  87.     And  see  as  to  estates  worth 

260;  50  Plun,    (N.    Y.)  523.       Even  if  le.ss  than  ^300,  Ind.  statute  referred  to 

the  person,  in  fact  aUve,  had  been  absent  in  Pace  &.  Oppenheim,  12  Ind.  533. 
and  not   heard  of  for  fifteen  years,  the         ''  Little  v.  Sinnett,  7  Iowa,  324 ;  Mur- 

grant    of   letters    is    void.     Devlin    v.  phy  v.  Creighton,  45  Iowa,  179. 
Commonwealth,    loi     Penn.    St.    273.         'Harlan,    Estate   of,    24    Cal.    182; 

And  see  Scott  v.  McNeal,  154  U.  S.  34,  Watson  v.   Collins,  37  Ala.  587  ;   §  24 

with  citations  (1893).  snpra. 
'  .As  \o    bringing   property  into  the 

123 


§  94 


EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 


conveyance  claimed  to  be  fraudulent  and  voidable.'  Trust  or 
partnership  property,  however,  is  not  estate  to  be  administered, 
but  an  individual's  own  property  is  the  criterion.^ 


§  94.  Time  within  which  Original  Administration  must  be  ap- 
plied for. —  Statutes  are  found  which  expressly  limit  the  time 
within  which  original  administration  must  be  applied  for.  Thus, 
in  Massachusetts,  such  administration  cannot  (with  a  certain 
reservation)  be  granted  after  twenty  years  from  the  death  of 
the  person  whose  estate  is  concerned ;  ^  though  no  such  limits 
are  set  to  the  probate  of  a  will.''  English  practice  requires  any 
delay  longer  than  three  years  in  applying  for  letters  to  be  satis- 
factorily explained,  whether  the  application  be  for  letters  testa- 
mentary or  of  administration. 5 

Long  acquiescence  by  persons  s/ii  juris  in  an  informal  distri- 


'  Nugent's  Estate,  77  Mich.  500  ;  148 
Mass.  248. 

=  See  Shaw's  Appeal,  81  Me.  207 ;  4 
Mason  16,  29;  Johnson  v.  Ames,  11 
Pick.  173.  Where  the  decedent  was 
member  of  a  partnership  and  the  per- 
sonal property  all  belongs  to  the  firm, 
the  winding  up  of  the  partnership  be- 
longs rather  to  an  equity  court  than  a 
court  of  probate,  but  administration 
assets  should  be  rather  such  as  defin- 
itely belong  to  the  individual,  whether 
by  an  immediate  dissolution  on  his 
death  with  a  winding  up,  or  otherwise. 
Shaw's  Appeal,  supra. 

3  Ma.ss.  Gen.  Stats,  c.  94,  §§  3,  4- 
There  is  the  express  reservation  that 
when  property  accrues  to  the  estate  or 
first  comes  to  the  knowledge  of  a  per- 
son interested  after  twenty  years,  ad- 
ministration may  be  applied  for,  as  to 
such  property,  within  five  years.  lb. 
See  I'ar.sons  v.  Spaulding,  130  Mass. 
83.  See  also,  as  to  the  demurrer  that 
there  is  no  property.  Brooks  Re,  110 
Mich.  8. 

*  Supra,  %  56;  Shumwayw.  Holbrook. 
1  Pick.  1 14. 


5  Wms.  Exrs.  7th  ed.  452,  453 ;  3 
Hagg.  565.  And  see  Townsend  ?'. 
Townsend,  4  Coldw.  70,  which  makes 
exceptions  after  twenty  years  in  favor 
of  those  who  were  infants  or  married 
women  when  the  death  occurred.  Un- 
der the  Texas  act  of  1870  no  such  ad- 
ministration can  be  granted  after  four 
years  have  elapsed  from  the  death  of 
the  intestate.  Lloyd  v.  Mason,  38  Tex. 
212.  l!ut  in  North  Carolina  an  admin- 
i.strator  may  be  appointed  at  least  ten 
years  after  the  intestate's  death,  not- 
withstanding the  next  of  kin  possessed 
the  property  meantime.  Whit  v.  Ray, 
4  Ired.  14.  In  Pennsylvania,  letters 
should  not  be  issued  after  twenty  year.s, 
except  under  statute  qualifications.  But 
as  to  the  effect  of  so  issuing,  see  Foster 
7K  Commonwealth,  35  Penn.  St.  148. 
Seven  years  is  the  Connecticut  limita- 
tion in  intestate  estates  only.  49  Conn. 
411. 

A  reasonable  time  to  apply  for  letters 
is  in  general  permitted.  Todhunter  v. 
Stewart,  39  Ohio  St.  181. 


124 


CHAP.    Ill,]  APPOINTMENT    OF    ADMIN  IS  IKATORS.  §  96 

bution  of  an  estate  will  debar  them  from  seeking  administration 
merely  to  disturb  such  settlement,  there  being  no  creditors.' 

§  95.  No  Original  and  General  Administration  granted  while 
Other  Letters  are  in  Full  Force,  etc.  ;  Double  Jurisdiction.  —  There 
can  be,  of  course,  no  grant  of  original  and  general  administra- 
tion, while  other  letters  granted  and  confirmed  as  of  a  testate 
estate  or  to  an  original  administrator  remain  in  full  force  within 
the  same  general  and  appropriate  jurisdiction.-  And  hence  the 
rule,  convenient  where  local  assets  may  confer  double  jurisdic- 
tion, that  when  a  case  is  within  the  jurisdiction  of  the  probate 
court  in  two  or  more  counties,  the  court  which  first  takes  cog- 
nizance thereof  by  the  commencement  of  proceedings  shall  re- 
tain the  same,  and  the  competent  administration  first  granted 
shall  extend  to  all  the  estate  of  the  deceased  in  the  State,  so  as 
to  exclude  the  jurisdiction  of  every  other  county.^  But  where 
the  court  of  county  of  last  residence  has  exclusive  jurisdiction 
in  a  State,  it  may  properly  ignore  as  void  an  appointment  in 
another  county  of  the  State.'* 

Real  estate,  to  be  appropriated  to  the  payment  of  a  debt  of 
the  decedent,  may  perhaps  require  a  local  appointment  of  ad- 
ministrator under  the  rule  of  situs  ;  5  but,  notwithstanding  such 
appointment,  an  administrator,  appointed  in  the  local  jurisdic- 
tion where  the  decedent  resided,  becomes  the  principal  and 
primary  administrator,  and  entitled  eventually  as  such  to  the 
personal  assets.^ 

§  96.  Judicial  Inquiry  into  the  Facts  Essential  to  the  Grant  of 
Administration.  —  Letters  of  administration  are  issued  by  the 
court  in  many  States,  upon  the  mere  allegations  of  the  peti- 
tioner, aided  by  the  public  nature  of  the  proceedings,  and  the 
requirement  of  a  bond  for  general  security.     Where  such  is  the 

'  Beardslee  v.  Reeves,  76  Mich.  661  ;         '  i^,c&  post  as  to  administrator's   deal- 

Ledyard  v.  Bull,  119  N.  Y.  62.  ings  with   real  estate;    58  P'ed.  51,  65, 

^Landers  7'.  Stone, 45  Ind.  404  ;  Slade  66,  (land  claims), 
t'.  Washburn,  3  Ired.  L.  557.  ^Chamberlin   v.   Wilson,    45     Iowa, 

^Mass.    Gen.    Stats,    c.    117;    Smith  149  ; /oj/,  as  to  ancillary  administration, 

Prob.  Prac.  (Mass.)  6.  etc.     As  to  a  land  claim,  see  Fletcher 

^King's  Estate,  105  Iowa,  320.  z'.  McArthur,  68  Fed.  65. 

125 


§  97  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

practice,  the  grant  itself  must  needs  afford  very  little  proof  of 
the  facts  essential  to  jurisdiction,  unless  those  facts  were  con- 
troverted ;  and  the  administrator  should  act  accordingly,  under 
a  full  sense  of  the  perilous  responsibilities  with  which  he  has 
been  invested.  But  the  probate  judge  in  each  case  has  sound 
discretion  to  investigate  and  determine  as  to  death  and  other 
facts  fundamental  to  the  grant  of  administration  ;  and  in  some 
States  the  judicial  nature  of  the  inquiry  in  the  probate  court, 
and  the  necessity  of  requiring  due  proof,  appear  to  be  strongly 
insisted  upon.' 

§  97.  Persons  to  •whom  General  Administration  is  granted. — 
The  appointment  of  administrators,  both  in  England  and  the 
United  States,  is  founded  upon  the  statute  31  Edw.  III.  c.  11  ; 
local  legislation  at  the  present  day,  however,  expressly  regulat- 
ing the  whole  subject.  The  policy  of  this  statute  in  connection 
with  a  later  one,  passed  during  the  reign  of  Henry  VIII.,-  both 
ante-dating  the  settlement  of  the  American  colonies,  was  to 
depute  administration  to  those  most  directly  interested  in  the 
estate,  in  case  the  deceased  himself  had  made  no  choice  by  a 
will.  "  The  next  and  m.ost  lawful  friends  of  the  dead  person 
intestate,"  was  the  language  of  the  first  of  these  statutes,  which 
took  the  right  of  administering  away  from  the  clergy,  Stat. 
Hen.  VIII.  c.  5,  §  3,  conferred  upon  the  ordinary  a  right  to 
exercise  discretion  as  between  widow  and  next  of  kin,  and  in 
case  various  persons  equal  in  degree  of  kindred  should  desire 
the  administration.^ 

The  fundamental  principle  of  both  English  and  American 
enactments  now  in  force  on  this  subject  is,  that  the  right  to  ad- 
minister, wherever  the  deceased  chose  no  executor,  shall  go 
according  to  the  beneficial  interest  in  the  estate ;  a  principle 

'See    Roderigas  v.  East   River  Sav-  administrator,  that  the  appointment  was 

ings    Inst.,  63    N.   Y.  460;    Bulkley  v.  made  upon   the  petitioner's    averment 

Redmond,   2   Bradf.   Sur.   281  ;    Vogel,  that,  to    his    best    knowledge,  informa- 

Succession  of,  16  La.  Ann.  13;  Burns  tion,  and   belief,  M.  was  dead,  with  no 

V.  Van  Loan,  29  La.  Ann.  560.      It  is  other   proof   of   death.      Roderigas   v. 

not  enough,  in  New  York  State,  to  give  East  River  Savings  Inst.,  76  N.  Y.  316. 

the  surrogate  jurisdiction,  so  as  to  ran-  ^Stat.  21  Henry  VIIT.  c.  5,  §  3. 

der  the  person  appointed  even  a  de facto  ^  Wms.  Exrs.  409,  436. 

126 


CHAP.    HI.]  APrOlNTMENT    OF    ADMINISTRATORS.  §   98 

which  may  yield,  however,  to  other  considerations  of  sound 
policy  and  convenience.  And  the  grant  should  be  according  to 
the  preference  at  the  time,  not  of  the  intestate's  death,  but  of 
the  application.' 

§  98.  Husband's  Right  to  Administer  upon  the  Estate  of  his 
Deceased  Wife.  —  It  was  part  of  the  common  law  which  divested 
the  wife  of  her  personal  property  for  her  husband's  benefit,  and 
merged  her  status  in  his,  that  on  her  death,  leaving  a  husband 
surviving,  the  latter  could  rightfully  administer  her  estate  to 
the  exclusion  of  all  kindred.  The  foundation  of  this  claim  has 
been  variously  stated  ;  some  have  thought  it  derived  from  the 
statute  31  Edw.  III.,  he  being  her  "next  and  most  lawful 
friend  "  ;  while  others  deduce  it  from  the  fundamental  law  of 
coverture,  with  whose  general  scope  it  fully  harmonizes.  The 
right  is  confirmed,  both  in  England  and  in  many  parts  of  the 
United  States,  by  modern  statutes,  and  constitutes  an  exception 
to  the  usual  rule  of  administration  upon  the  estate  of  intestates.^ 
Often,  under  the  theory  of  coverture,  there  was  no  occasion 
for  a  husband  to  administer  upon  his  deceased  wife's  estate  at 
all ;  her  personalty  was  his  if  recovered  during  her  life,  and  he 
had  to  respond  personally  for  her  debts  irrespective  of  her  for- 
tune ;  but  administration  might  be  necessary  in  order  to  sue 
or  to  reduce  her  cJwses  into  possession  after  her  death. ^  The 
modern  creation  of  a^  separate  estate  on  the  wife's  behalf 
changes  this  old  rule  considerably  ;  nor  can  the  husband  in 
these  days  be  said  to  administer  so  exclusively  for  his  own  ben- 

'  Subject    to    statute    variations,   of         ^Schoul.  Hus.   &   Wife,  §   405.     No 

course.      Griffitli  v.  Coleman,  61    Md.  administration   was    needful   to  entitle 

250.     The  grant  of  administration  must  the  husband  to  that  which  he  already 

be  to  the  persons  in  the  order  and  un-  possessed,  by  virtue  of  his  marital  rights, 

der  the  contingencies  provided  by  the  or  to  confirm  his  right  to  choses  t>i  action 

local  statute.     51  Mich.  29.  recoverable  without  the  aid  of  the  courts. 

^See  Wms.  Exrs.  410  ;  Schoul.  Hus.  Whitakcr  v.  Whitaker,  6  John.  117; 
&  Wife,  §  405.  This  right  is  not  an  Clough  v.  Bond,  6  Jur.  50. 
ecclesiastical,  but  a  civil,  right  of  the  But  .see  recent  Maryland  statute  re- 
husband  ;  a  right,  however,  to  be  ad-  quiring  a  special  order  of  court  to  de- 
ministered  in  the  court  of  probate.  Sir  volve  the  title  upon  the  surviving 
J.  Nicholl  in  Elliott  v.  Gurr,  2  Phillim.  husband.  Wilkinson  v.  Robertson,  85 
19.  Md.  447. 

127 


98 


EXECUTORS    AND    ADMINISTRATORS. 


[I'ART   II. 


efit  as  formerly.'  And  owing  to  modern  facilities  for  separation 
and  divorce,  and  to  the  enlarged  capacity  given  to  the  wife  to 
act  as  2ifcnic  sole,  and  to  acquire  and  dispose  of  property  in  her 
own  right,  the  husband's  privilege  to  administer  upon  his  wife's 
estate  in  preference  to  kindred,  whether  for  his  sole  benefit  or 
in  the  interest  of  others,  appears  a  somewhat  precarious  one. 

Thus,  in  England,  where  a  married  woman  lives  separate 
from  her  husband  under  a  protection  order  giving  her  the 
capacity  to  deal  and  be  dealt  with  as  ts.  feme  sole,  administration 
will  be  granted  upon  her  death  to  her  next  of  kin,  exclusive  of 
the  husband.^  So  may  a  husband's  general  misconduct  preju- 
dice his  claim  to  administer  as  against  others  interested  in  the 
estate.^  And  in  the  United  States  may  be  found  similar  excep- 
tions, founded  in  considerations  of  the  husband's  misconduct, 
where  others  are  interested  in  the  estate,  and  the  court  has  a 
statute  discretion  in  the  matter  of  appointment. ■♦ 


■  Schoul.  Hus.  &  Wife,  §§  408,  409  ; 
Distribution,  post. 

^  Worman,  Goods  of,  i  Sw.  &  Tr. 
513;  Stat.  20  &  21  Vict.  c.  85.  Such 
administration  appears  to  be  limited  to 
the  personal  property  the  wife  may 
have  acquired  since  the  husband's  de- 
sertion. Wms.  Exrs.  411.  Adminis- 
tration has  been  granted  to  a  guardian 
elected  by  her  son,  a  minor,  without 
citing  the  husband.  Stephenson,  Goods 
of,  L.  R.  I  P.  &  D.  285. 

M1898),  P.  147- 

■•See  Coover's  Appeal,  52  Penn.  St. 
427;  Cooper  V.  Maddox,  2  Sneed,  135. 
And  see  post,  as  to  general  incapacity 
for  service  as  administrator,  which  may 
apply  to  a  surviving  husband  as  to  any 
one  else;  and  for  limitation  of  the  time 
within  which  the  right  should  be  as- 
serted, supra,  §  94. 

Ill  most  parts  of  the  United  States 
the  husband's  exclusive  preference  to 
administer  on  his  wife's  estate  is  recog- 
nized by  statute.  See,  upon  this  point, 
Hubbard  v.  Barcas,  38  Md.  175  ;  Willis 
V.  Jones,  42  Md.  422  ;  J"airbanks7/.  Hill, 

I 


3  Lea,  732 ;  Shumway  v.  Cooper,  16 
Barb.  556  ;  Happiss?'.  Eskridge,  2  Ired. 
Eq.  54 ;  Clark  v.  Clark,  6  W.  &  S.  85. 
To  deprive  him  of  such  right,  the  stat- 
ute should  be  clear  and  positive  in 
terms.  A  written  agreement  for  sepa- 
ration, in  contemplation  of  a  divorce, 
with  covenants  as  to  property,  will  not 
be  presumed  to  have  intended  a  relin- 
quishment of  the  right  to  administer  in 
case  the  husband  survives,  nor  will  such 
construction  be  given,  no  divorce  hav- 
ing been  decreed.  Willis  v.  Jones,  42 
Md.  422.  Nor  will  an  ante-nuptial  set- 
tlement for  the  wife's  benefit.  Hart  v. 
Soward,  12  B.  Mon.  391.  Nor  the  fact 
of  non-residence.  W' eaver  v.  Chace,  5 
R.  I.  356.  Nor  relinquishment  of  rights 
to  her  property  by  a  post-nuptial  con- 
tract.    O'Rear  v.  Crum,  135  111.  294. 

But  in  some  States  the  husband  is 
not  entitled  to  administer  to  the  exclu- 
sion of  the  children.  Randall  v.  Shrader, 
1 7  Ala.  333  ;  Williamson,  Succession  of, 
3  La.  Ann.  261  ;  Goodrich  v.  Treat,  3 
Col.  40S.  This  will  become  further  ap- 
])nrent  when  Distribution  is  considered, 
28 


CHAP.    III.]  APPOINTMENT    OF    ADMINISTRATORS. 


§98 


The  wife's  will,  lawfully  made  and  operating,  may  control  a 
surviving  husband's  right  to  administer."  And,  in  general,  that 
the  husband  may  be  preferred  in  the  trust,  it  is  assumed  that 
he  is  both  competent  and  willing  to  exercise  it.  But  the  mere 
fact  that  the  husband  has  no  pecuniary  interest  in  his  wife's  es- 
tate does  not  per  se  deprive  him  of  his  common-law  right  to 
administer.^ 

Both  in  England  and  the  United  States,  if  a  marriage  were 
voidable  only  and  not  annulled  before  the  wife  died,  the  surviv- 
ing husband  was  always  entitled  to  administer  ;  ^  but  if  utterly 
void,  or  annulled  during  their  joint  lives,  the  man  was  no  sur- 
viving husband  at  all,  and  could  claim  no  rights  as  such.'*  On 
principle,  too,  while  the  husband's  right  to  administer  would 
seem  not  to  be  forfeited  by  a  mere  decree  of  judicial  separation 
or  divorce  from  bed  and  board,^  a  divorce  absolute,  or  from  the 
bonds  of  matrimony,  annihilates  his  right  with  the  marriage  re- 
lation.^ 


post,  and  it  is  perceived  that  the  surviv- 
ing husband  must  share  the  estate  with 
children  or  other  kindred  ;  for  the  gen- 
eral principle  is  that  the  right  to  admin- 
ister follows  the  interest  in  the  estate. 
An  ante-nuptial  settlement,  properly 
worded,  may  exclude  the  husband's 
marital  right  in  this  respect.  Ward  v. 
Thompson,  6  Gill  &  J.  349 ;  Fowler  v. 
Kell,  22  Miss.  68;  Schoul.  Hus.  & 
Wife,  §  363.  The  Massachusetts  stat- 
ute makes  express  reservation  where, 
by  force  of  a  testamentary  disposition 
or  otherwise,  the  wife  has  made  some 
provision  which  renders  it  necessary  or 
proper  to  appoint  some  one  else  to  ad- 
minister.    Mass.  Pub.  Sts.  c.  130. 

'  Wms.  Exrs.  415.  See  Schoul.  Wills, 
Fart  II.,  c.  3,  as  to  the  walls  of  married 
women  in  modern  practice.  The  wife's 
choice  of  executor  under  her  wall,  it 
rightfully  made  in  conformity  with  rules 
of  equity  or  a  modern  statute,  is  to  be 
respected.     As  to  the  effect  of  her  will 

9  I 


naming  no  executor,  etc.,  see  post,  ad- 
ministration with  the  -will  annexed. 
But  the  wife's  will,  if  limited  in  opera- 
tion, calls  for  a  limited  probate,  and  ad- 
ministration of  the  rest  should  be 
granted  to  her  husband.  Wms.  Exrs. 
415  ;  Stevens  v.  Bag\vell,  15  Ves.  139. 

Administration  gianted  upon  the 
estate  of  a  married  woman  as  though 
she  were  single  may  be  revoked  for  er- 
ror.    (1893)    P.  16. 

^  O'Rear  7'.  Crum,  135  111.  294,  and 
other  cases  supra. 

3  Schoul.  Hus.  &  Wife,  §  13;  Wms- 
Exrs.  411;  Elliott  v.  Gurr,  2  Phillim. 
19. 

■•  lb. ;  Browning  v.  Reane,  2  Phillim. 
69. 

5  Schoul.  Hus.  &  Wife,  §  563 ;  2 
Bish.  Mar.  &  Div.  5th  ed.  §  739 ;  Clark 
V.  Clark,  6  W.  &  S.  85. 

*'  Schoul.  Hus.  &  Wife,  §  559 ;  2  Bish. 
Mar.  &  Div.  5th  ed.  §  725 ;  Altemus's 
Case,  I  Ashm.  49. 
29 


§  99  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

S  99.  Widow's  Right  to  Administer  upon  the  Estate  of  her 
Deceased  Husband.  —  The  surviving  wife's  right  to  administer  on 
her  husband's  estate  is  not,  under  most  statutes  which  regulate 
the  grant  of  general  administration,  co-extensive  with  the  right 
of  a  surviving  husband.  The  husband  in  the  one  instance  is 
preferred  to  all  others  ;  but  in  the  other  (to  quote  from  statute 
21  Hen.  VIII,  c.  5,  §  3),  administration  shall  be  granted  at  the 
court's  discretion,  "  to  the  widow  or  the  next  of  kin  or  to  both," 
so  that  kindred  and  the  widow  stand  apparently  upon  an  equal 
footing,  though  not  unfrequently  parties  adverse  in  point  of  fact. 
Such  is  the  rule  of  England ; '  and  it  prevails  in  most  parts  of 
the  United  States.^  As  we  shall  see  hereafter,  the  division  of 
interests  as  between  widow  and  kindred  is  its  basis. 

The  widow  must  be  actually  and  bona  fide  such,  and  the 
surviving  wife,  in  order  to  be  entitled  to  administer  upon  the 
estate  of  an  intestate.  The  partner  of  a  void  marriage,  or  the 
survivor  of  a  conjugal  pair,  absolutely  and  finally  divorced  by  a 
competent  tribunal,  can  assert  no  such  claim. ^  Divorce  from 
bed  and  board,  however,  or  a  marriage  simply  voidable,  works 
no  forfeiture  of  the  widow's  statute  right  to  administer ;  nor 
would  voluntary  separation  of  the  pair ;  ^  yet  the  discretion  of 
the  court,  here  permitted,  as  between  widow  and  kindred,  may 
suffice  to  exclude  the  former  whenever  her  past  misconduct  has 
rendered  her  unworthy  of  the  trust,  or  from  other  cause  her 
appointment  is  obviously  unsuitable.^       Marriage  settlements, 

'  Wms.  Exrs.  416;  Browning,  Goods  the  widow  was  held  to  be  competent, 

of,  2  Sw.  &  Tr.  634;  Grundy,  Goods  of,  Boyd's  Appeal,  38  Penn.  St.  246. 

L.  R.  I  P.  &  D.  459;  Widgery  v.  Tep-  *  See  Schoul.   Hus.   &   Wife,  §§    13, 

per,  5  Ch.  D.  516.  563;   Wms.  Exrs.  418;    3   Hagg.   217 

^  2  Kent  Com.  410,  411,  and  notes.  556;  2  Bish.  Mar.  &  Div.  5th  ed.  §  725 
But  see  next  section.  A  non-resident  One  may  leave  a  lawful  widow,  by  re- 
widow  may  be  objectionable  even  marrying  after  a  divorce.  Ryan  z'.  Ryan, 
though  a  statute  imposes  no  absolute  2  Phillim.  332.  See  also  Nusz 7'.  Grove 
limitation  upon  her.  O'Brien's  Estate,  27  Md.  391  ;  Odiorne's  Appeal,  54  Penn 
63  Iowa,  622;  Ehlen  z/.  Ehlen,  64  Md.  St.  175. 
360.  *  And  see  as  to  the  husband  under 

^  O'Gara  v.  Eisenlohr,  38  N.  Y.  296  ;  corresponding     circumstances,     §     98. 

Schoul.   Hus.  &  Wife,  §   559;  2  Bish.  Administration     refused      to     a     wife 

Mar.  &  Div.  5th  ed.  §  739.     But  where  divorced  from  bed  and   board  because 

a  decree  of  division  had  been  vacated  of  her  adultery.     Davies,  Goods  of,  2 

and  annulled  after  the  husband's  death,  f'urt.  628;    Wms.  Exrs.  418.     Refused 

130 


CHAP.    III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    I  GO 

too,  may  exclude  the  rights  of  one  surviving  spouse  as  well  as 
the  other.'  And  we  here  consider,  of  course,  simply  the  estate 
of  a  husband  who  dies  intestate,  leaving  a  widow  mentally  and 
otherwise  competent,  when  we  speak  of  her  right  to  administer. 
Notwithstanding  the  statute  expression,  English  courts  in 
modern  practice  select  the  widow  to  administer,  in  preference 
to  the  next  of  kin,  unless  good  reason  appears  for  appointing 
differently.^  As  against  next  of  kin  of  remote  degree  or  cred- 
itors, the  wife  deserves  the  strongest  consideration  ;  and  even 
children  should  respect  a  surviving  parent.  Administration 
may  doubtless  be  granted  to  both  widow  and  next  of  kin  ;  but 
a  sole  and  harmonious  administration  is  always  preferred  in 
practice  to  a  joint  and  divided  one.^  Where  letters  are  issued 
to  the  widow  and  one  of  the  next  of  kin  jointly,  it  is  desirable 
that  the  other  next  of  kin  should  consent  to  the  co-appointment. •♦ 

§   1 00.    Widow's   Right  to  Administer ;   The  Subject  continued. 

—  The  American  rule  as  to  the  choice  for  administration  between 
widow  and  kindred  must  be  gathered  from  a  variety  of  acts  ap- 
plicable in  different  States.  There  is,  perhaps,  on  the  whole, 
more  disposition  than  in  England  to  construe  the  statute  liter- 
ally ;  balancing  the  preference  of  widow  and  kindred  more  evenly, 
and  according  to  the  merits  of  each  case,  and  granting  adminis- 
tration to  one  or  the  other  or  jointly  to  both  ;  regarding,  more- 
over, that  personal  suitableness  for  the  trust  which  we  shall 
presently  consider  in  its  wider  bearings.^  A  preference  of  the 
widow  to  children  and  other  kindred  is,  however,  expressly  ac- 
corded by  the  statutes  of  New  York  and  certain  other  States.^' 

to  a  wife  dissipated  and  an  eloper.    Stev-  ^  Wms.  Exrs.  417;  i  Salk.  36. 

ens's  Goods,  (1898)  P.  126.     Stat.  20  &  "  Newbold,   Goods  of,  L.  R.  i    P.  & 

21  Vict.  c.  77,  §  73,  permits  the  refusal  D.  285. 

of  administration  to  the  widow  under  '  See   McClellan's  Appeal,  16   Penn. 

" special  circumstances."     See  Wells  z/.  St.      no;    Smith's     Probate     Practice 

Brook,  25  W.  R.  463.  (Mass.)  70. 

■  Schoul.  Hus.  &  Wife,  §  363  ;  2  Gas.  ^  Pendleton  v.  Pendleton,  6  Sm.  &  M. 

temp.  Lee,  560.  448;  Lathrop  v.  Smith,  24  N.  Y.  417; 

=  Goddardz/.  Goddard,  3  PhilHm.638;  McBeth  v.  Hunt,  2  Strobh.  335  ;  Curtis 

Wms.   Exrs.    417.     But  %vith   ancillary  v.   Williams,    t,},   Ala.    570.      Illiteracy 

administration   it  might    be  otherwise,  and  poverty  or  old  age  do  not  deprive  a 

Rogerson,  Goods  of,  2  Curt.  656.  widow  of  her  statutory  preferred  right 

i3i 


J 


§    lOI  EXECUIOKS    AND    ADMINISTRATORS.  [PART    II. 

Where  there  are  no  children  or  descendants  of  children,  the 
widow's  distributive  interest  in  the  surplus  of  the  estate  may 
render  her  all  the  more  preferable  to  kindred.' 

English  courts  have  held  that  the  re-marriage  of  the  widow 
is/>crsr  no  valid  objection  to  her  claim  to  administer;'  but  if 
children  unite  in  their  choice  as  against  her,  under  such  circum- 
stances, it  seems  j^roper  that  they  should  at  least  have  a  co- 
administrator appointed. 3  Both  in  England  and  the  United 
States,  where  the  widow  is  heir  and  distributee,  and  for  aught 
that  is  known  the  only  one,  she  will  be  appointed  in  preference 
to  any  stranger.-* 

§    I O I .    Right  of  the  Next  of  Kin  to  Administer  ;    Consanguinity. 

—  Subject  to  the  possible  claims  of  surviving  husband  or  widow, 
as  already  noticed,  the  right  of  an  intestate's  next  of  kin  to  ad- 
minister, as  well  as  to  take  the  residue  of  the  personalty  by  way 
of  distribution  after  settling  all  claims,  is  paramount.  These 
"next  of  kin,"  or  "next  and  most  lawful  friends"  of  the  de- 
ceased (to  use  the  language  of  the  old  statute  5)  Lord  Coke  de- 
fines as  "  the  next  of  blood  who  are  not  attainted  of  treason, 
felony,  or  have  any  other  disability."  ^ 

In  general,  no  one  comes  within  the  term  "next  of  kin  "  who 
is  not  included  in  the  provisions  of  the  statutes  of  distribution 
hereafter  to  be  detailed.  And,  as  we  have  stated,  the  funda- 
mental principle  in  the  award  of  administration  is  that  the  right 
to  administer  upon  the  estate  of  an  intestate  follows  llic  interest 
or  right  of  property  therein."  Hence  precedents  under  the  one 
head  may  serve  to  establish  a  rule  under  the  other.  In  most 
American  States  the  statutes  of  distribution  fix  the  order  of 
preference  among  kindred  with  much  precision."*     And  the  gen- 

in  Pennsylvania,  if  her  mind  and  judg-  ^  See  ib. 

ment  are  good;  Bowersox's  Appeal,  I oo  *  Cobb  v.   Newcomb,   ig   I^ick.   336; 

Penn.  St.  434;  108  Penn.  St.  567.  Block,  Succession  of,  6  La.  Ann.   810. 

'  In  Tennessee,  and  in  various  other  '  31  Edw.  3,  c.  11. 

States  (see  Di.stribution,/>(?.f/),  the  widow  *  9  Co.  Rep.  39  b. 

in  such  a  case  is  entitled  to  the  whole  '' 3  Atk.  422,  per   Sir  John  Nicholl ; 

surplus  of  the  personal  estate  after  pay-  Gill,  Goods  of,    i    Hagg.    342;    Wms. 

ment  of  the  debts.      Swan  v.  Swan,  3  Exrs.  7th  Eng.  ed.  419,  and  notebyPer- 

Head,  163.  kins. 

*  Webb  f .  Xeedham,  i  .Xdd.  jo}-  "  See/i<?j-/,  Distribution. 

'3-2 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    I02 

eral  rule  is,  that  where  there  is  neither  husband  nor  wife  of  the 
intestate  surviving,  administration  shall  be  granted  to  one  or 
more  of  the  distributees,  if  such  be  competent  and  desirous  of 
serving." 

As  between  husband  and  wife,  neither  can,  by  virtue  of  the 
marriage  relation  alone,  be  regarded  as  next  of  kin  to  the  other, 
for  they  are  not  blood  relatives;-  and  this  reservation  extends 
to  all  marriage  connections.  Consanguinity  or  kindred,  in  fact, 
is  that  relationship  of  persons  which  is  derived  from  the  same 
stock,  or  a  common  ancestor  and  common  blood  in  the  veins. 
Consanguinity  is  either  collateral  or  lineal.  Collateral  consan- 
guinity is  the  relationship  of  persons  descended  from  the  same 
common  ancestor,  but  not  one  from  the  other ;  as  in  the  case 
of  nephew,  cousin,  or  even  brother  and  sister.  These  spring 
from  the  same  root  or  stock,  but  in  different  branches.  Lineal 
consanguinity,  on  the  other  hand,  is  that  relationship  which  ex- 
ists where  one  is  descended  from  the  other,  as  between  son  or 
daughter,  and  the  father  or  grandfather,  and  so  directly  upwards 
or  downwards.^  A  simple  perpendicular  line  on  the  chart, 
against  which  names  are  written,  shows  the  lineal  kindred  of 
any  person  deceased  intestate  ;  while  connecting  lines,  centered 
at  some  preceding  name,  exhibit  the  collateral  kindred.'' 

§  I02.  The  same  Subject;  Ho-w  to  ascertain  the  Preference 
among  Kindred.  —  In  order  to  ascertain  who  are  next  of  kin  and  J/^ 
lawfully  preferable  for  administration,  we  reckon  on  such  a  chart 
from  the  deceased  intestate  to  the  nearest  in  degree  of  blood  sur- 
viving him.  By  the  rule  alike  of  the  civil,  canon  and  common 
law,  every  generation  in  the  direct  course  of  relationship  makes 
a  degree  for  computing  the  degree  of  lineal  consanguinity  ;  or,  in 
other  words,  we  are  to  count  either  directly  upwards  or  directly 
downwards  to  the  nearest  relative  who  survived  the  deceased. 
Father  and  son  are  both  in  the  first  lineal  degree  ;  grandfather  and 

■  Hawkins   v.  Robinson,  3    B.   Mon.         ^  2  Bl.  Com.  202. 
141.  "  2  Bl.  Com.  203-205.     See  table  of 

-  Watt  7<.  Watt,  3  Ves.  244  ;  2   Kent  consanguinity  at   the  end  of  this   vol- 

Com.  136,  142;  Whitaker  t'.  Whitaker,  ume. 
6  Johns.  112. 


^    I02  EXFXUTORS    AND    ADMINISTRATORS.  [PART  11, 

grandson  both  in  the  second.  Collateral  consanguinity,  accord- 
ing to  the  preferable  method,  is  computed  by  a  similar  process, 
extended  into  the  diverging  lines  ;  that  is  to  say,  we  count  up- 
wards to  the  common  ancestor  of  both  the  deceased  and  the 
surviving  kinsman,  and  then  follow  the  branch  downwards  until 
the  kinsman  is  reached,  reckoning  one  degree  for  each  gener- 
ation. The  civil  law  took,  thus,  the  sum  of  the  degrees  in  both 
lines  to  the  common  ancestor,  so  as  to  point  out  the  actual  de- 
gree of  kindred  in  all  cases  ;  our  English  canon  law,  though  less 
e.xact,  arrived  at  the  same  general  result.'  Hence,  following 
the  civil  method,  we  pronounce  the  intestate's  brother  in  the 
second  degree,  both  his  uncle  and  nephew  in  the  third  degree, 
and  his  cousin  in  the  fourth.' 

Other  rules  in  this  connection  deser\'e  our  consideration. 
( I)  Relatives  of  the  deceased  by  the  father's  side  and  the  moth- 
er's side  stand  in  equal  degree  of  kinship,-^  so  that,  in  tracing 
out  pedigree  beyond  one's  immediate  family,  two  trees  may  be 
required  for  comparison.  (2)  Half-blood  must  be  reckoned  as, 
on  principle  and  save  for  those  feudal  disabilities  at  the  com- 
mon law  which  had  reference  to  the  inheritance  of  lands,  en- 
titled equally  with  the  whole  blood  ;  so  that  the  lialf-brother 
stands  in  higher  degree  than  the  full  uncle.^  (3)  Primogeniture 
gives  no  preference  of  administration  among  kindred  of  the  same 

'  See   2  Bl.    Com.   202,  207.     By  our  Sir  J.  Jekyl ;  Lord  Hardwicke  in  i  Ves. 

canon  law,  the  numbering   of  degrees  Sen.  335;  Wms.  Exrs.  421,  note, 
was  different  where  collateral  consan-         ^  See  table  of  consanguinity  at   end 

guinity  was  reckoned  ;  for  the  rule  was  of  volume. 

to  begin  with  the  common  ancestor  and  ^  Wms.  Exrs.  422;  i  P.  Wms.  53. 
reckon  downwards ;  and  the  degree  the  Local  .statutes  .sometimes  discriminate 
two  persons,  or  the  more  remote  of  in  favor  of  relatives  on  the  father's  side, 
them,  was  distant  from  the  ancestor,  was  Kearney  z'.  Turner,  28  Md.  408. 
taken  to  be  the  degree  of  kindred  sub-  ■•  i  Vent.  424.  And  see  2  Bl.  Com. 
sisting  l^etween  them.  For  instance,  505.  To  this,  however,  are  found  stai- 
two  brothers  were  said  to  be  related  to  ute  exceptions  in  favor  of  the  whole 
each  other  in  the  first  degree,  and  an  blood.  And,  among  those  of  equal  de- 
uncle  and  nephew  in  the  second.  lb.,  gree,  whole  blood  kindred  are  usually 
Christian's  note.  Chancery  judges  selected  to  administer  in  preference  to 
charge  the  canonists  with  reckoning  de-  those  of  the  half-blood.  Stratton  v. 
grees  of  kindred  so  closely  in  order  to  Linton,  31  L.  J,  P.  M.  &  A.  48;  Wms. 
increase  their  trade  in  selling  dispensa-  Exrs.  427. 
tions  of  marriage.     Prec.  Ch.   593,  per 


(  [{AP.    III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    [O;^ 

degree,  as  matter  of  right ;  and,  indeed,  in  the  United  States 
the  modern  rule  is  to  dispense  altogether  with  legal  distinctions 
in  favor  of  the  first-born  of  a  family.'  (4)  The  right  to  admin- 
ister, as  to  kindred,  will  follow  the  i)roximity  of  kindred  ;  and 
kindred  of  the  nearest  degree  accordingly  take  precedence  over 
those  more  remote,  as  the  true  "next  of  kin."  Thus,  if  one 
dies  leaving  no  children,  but  parents,  these  are  of  the  first  de- 
gree by  reckoning  ;  and  their  rights  are  accordingly  superior  to 
those  of  brother  and  sister,  who  occupy  the  second  degree/  In- 
deed, the  rights  of  parents  in  such  a  case  are  theoretically  para- 
mount and  equal.  But  the  old  doctrines  of  the  common  law 
forbade  the  theory  that  mother  and  father  should  have  equal  title 
as  parents;^  and  the  English  statute  i  Jac.  2,  c.  17,  moreover, 
which  has  been  re-enacted  in  numerous  American  States,  re- 
trenches the  rights  formerly  accorded  to  a  mother  as  the  only 
surviving  parent,  by  distributing  the  estates  of  intestates  equally 
between  mother,  brothers,  and  sisters,  where  there  is  no  surviv- 
ing father.''  Following  the  proximity  of  kindred,  the  grand- 
parent excludes  the  uncle  or  aunt,  being  nearer  in  degree.^ 

§  103.  The  same  Subject  ;  Preferences  among  Kindred  of  the 
same  Degree,  etc.  —  It  is  plain  that  one  may  die  leaving  various 
parties  related  to  him  in  the  same  degree  of  kindred,  but  in  dif- 
ferent classes,  and  without  any  common  bond  of  affection. 
Further  rules  of  discrimination  have,  therefore,  been  established 
for  convenience.  A  certain  preference  among  kindred,  in  fact, 
is  regarded,  in  according  rights  of  administration,  as  well  as  in 
legal  descent  and  distribution  ;  natural  affection  and  the  natural 
instincts  of  family  influencing,  no  doubt,  such  a  selection. 
Thus,  should  one  die,  leaving  a  child  or  children,  these  among 
kindred  are  the  closest  to  him  ;  and  though  of  the  same  degree 
as  his  father  or  mother,  they  should   be  preferred.^     And  the 


'  Wms.  Exrs.  423;    i    Phillim.    124;  <  Wms.  Exrs.  423 ;  Distribution, /^j/. 

Distribution, /w^;  Shomo's  Appeal,  57  ^  lb. ;  i  P.   Wms.  45;   i    Ld.    Kaym. 

Penn.  St.  356.  686. 

'^  I  P.    Wms.  51  ;   Wms.   Exrs.  423;  ^  2  Bl.  Com.  504;  Withy  v.  Mangles, 

Brown  v.  Hay,  i  Stew.  &  P.  102.  4  Beav.  358. 

^  See  ne.vt  section. 


§    I03  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

same  consideration  gives  precedence  to  lineal  descendants  in  the 
remotest  degree  ;  or,  in  other  words,  the  stock  one  has  founded 
takes  the  priority  of  that  from  which  he  was  derived.'  As  be- 
tween one's  own  brothers  and  sisters  and  his  grandparents,  though 
both  classes  are  of  the  second  degree,  yet  the  ties  are  knit  less 
closely  in  the  latter  case  than  in  the  former  ;  hence,  and  to  avoid 
dispersion  of  the  estate  among  more  remote  branches  of  the 
family,  brothers  and  sisters  are  preferred.^ 

All  these  discriminations  are  fundamental  in  English  and 
American  law.  Others  may  be  traced,  in  the  legislation  of  cer- 
tain States,  which  are  founded  in  reasons  less  forcible,  and  ope- 
rate by  virtue  of  local  laws,  mostly  of  an  experimental  char- 
acter. To  this  latter  class  may  be  referred  the  preference,  in 
case  both  parents  survive  the  intestate,  which  the  father  takes 
over  the  mother ;  a  preference  so  ingrained  in  the  common  law, 
that,  except  for  the  modern  tendencies  of  legislation,  we  should 
include  it  in  our  preceding  paragraph  am(mg  fundamental  dis- 
criminations.^ For,  when  a  child  dies  intestate  without  leaving 
wife  or  issue,  his  father,  if  there  be  one  living,  is  still  usually 
entitled  to  administer,  as  next  of  kin,  exclusive  of  all  others  ;  ■♦ 
while  a  mother  receives  consideration  only  when  the  widowed 
mother,  nor  always  then  as  against  the  other  children. 5  Next, 
as  between  lineal  and  collateral  kindred,  the  civil  law,  without 
respect  of  degree,  preferred  the  former  in  every  case,  except 
that  of  brothers  and  sisters  ;  while  the  common  law  selects  the 
collateral  of  nearer  degree,  rather  than  the  lineal  of  more  remote  ; 
and  this,  too,  is  a  matter  of  statute  definition  in  various  States.^ 
There  arc  limits  to  right  of  representation  (or  where  the  de- 
scendant stands  in  place  of  ancestor,  among  those  of  the  ances- 
tral degree),  as  we  shall  see  hereafter  ;  but  whether  entitled  to 
take  the  ancestor's  share  in  the  final  distribution  or  not,  the  is- 
sue may  well  be  subordinated  in  the  grant  of  administration. ^ 

'  Evelyn  v.  Evelyn,  3  Atk.  762  ;   s.  c.  *  Aleyn,  36  ;  Wms.  Exrs.  424. 

Amb.   191.  '  Supra,  §  102. 

^  Evelyn  J/.  Evelyn,  J?//";;/ ;  i  P.  Wms.  '' i  P.    Wms.   58;    Wms.  Exrs.    424. 

45  ;  Wms.  Exrs.  424.  But  as  to  lineal  descendants,  see  supra, 

^  Wms.   Exrs.  423;   Blackborough  ?'.  p.  136. 

Davis,   I  P.    Wms.  51.     And   see  as  to  '  Admini.stration  is  to  be  granted  to 

Distribution, /oj^.  the  daughter  in  preference  to  the  son 

136 


CHAP.    III.]  APPOINTMENT    OF    AOMINLSTRATORS.  §    1 04 

While  it  is  a  ma.xim  that  the  persons  entitled  to  participate 
in  distribution  have  also  the  right  to  administer,  it  nevertheless 
happens  often  that  the  person  designated  by  the  statute  to  ad- 
minister in  preference  may  have  disproportioned  rights  in  the 
estate,  or  perhaps  no  beneficial  right  therein  at  all.'  But  where 
the  statute  does  not  settle  the  right  to  administer,  the  question, 
who  is  entitled  to  the  surplus  of  the  intestate's  personal  estate, 
must  generally  be  the  practical  test.^ 

§  104.  Leading  Considerations  -which  affect  the  Choice  among 
Persons  equally  entitled  by  Lavy  to  administer  ;  Suitableness,  etc. 
— As  among  the  next  of  kin,  or  persons  all  of  the  same  class  in 
respect  of  a  legal  right  to  administer,  the  actual  choice  of  ad- 
ministrator by  the  court  may  be  guided  by  various  considera- 
tions. Personal  suitableness,  for  instance,  is  a  very  important 
element,  whether  in  determining  the  appointment  as  between 
the  widow  and  next  of  kin  of  an  intestate,  or  where  one  or  more 
next  of  kin  alone  are  concerned.  Favorably  as  our  law  treats 
the  widow's  claim  to  administer,  even  though  the  intestate's 
next  of  kin  were  his  own  children,^  a  widow  evidently  unsuit- 
able may  be  passed  over  in  favor  of  the  next  of  kin  ;  but  if  the 
next  of  kin  are  all  unsuitable,  the  widow,  being  competent,  is 
entitled  to  the  sole  administration  ;  while,  if  both  widow  and 
next  of  kin  are  unsuitable,  the  application  of  all  should  be  re- 
fused.'* And  so,  too,  where  only  next  of  kin  of  a  certain  class 
are  concerned  in  the  administration,  if  one  is  suitable  and  the 
others  are  unsuitable,  the  suitable  one  will  be  taken ;  if  two  or 
more  are  equally  entitled,  equally  suitable,  and  equally  strenu- 
ous to  be  appointed,  the  court  has  power  to  appoint  one  or  more 
of  them ;  but  if  all  are  unsuitable,  the  appointment  must  be 
otherwise  bestowed.      From  among  two  or  more  persons  equally 

of  the  eldest  son  of  the  intestate.     Lee  La.  Ann.  689  ;  Pendleton  ?'.   Pendleton, 

V.  Sedgwick,  i  Root,  52.  14  Miss.  448. 

'  Lathrop  v.  Smith,  24  N.  Y.  417.  ■•  Stearns  v.  Fiske,  18   Pick.  24.  Suit- 

^  Sweezey   7'.    Willis,    i    Bradf.    Sur.  ableness  is  an  element  of  especial  im- 

495.  portance    in    States  which    have    legis- 

^  Supra,    §    100;    Mtf'.ooch    7a     Mc-  lated  on  this  point. 

Gooch,  4  Mass.  348 ;  Sears  v.  Wilson,  5 

^37 


§    104  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

akin  to  the  deceased,  the  court  may  choose  the  most  suitable 
at  discretion.' 

As  to  suitableness,  there  are  numerous  decisions,  just  as 
there  are  various  kinds  and  degrees  of  unsuitableness.  Separa- 
tion of  husband  and  wife,  apart  from  the  question  of  fault,  does 
not,  we  have  seen,  disqualify  one  from  administering  on  the  es- 
tate of  the  other.  Nor,  as  it  is  held,  does  inability  to  read  or 
write  render  one  an  unsuitable  administrator.^  Nor  ignorance 
of  the  language,  where  intelligent  in  his  own  tongue.^  Neither 
illiteracy  nor  narrow  means  necessarily  makes  one  unsuitable.'* 
Nor  habits  of  intemperance.*  Nor  old  age.''  Nor  the  bare  fact 
of  intermeddling  with  the  effects  before  appointment.?  Nor 
that  the  party  in  interest  is  a  nun  or  priest.**  But,  as  between 
individuals  of  the  same  class,  moral  fitness  and  integrity  may 
well  be  considered  in  the  selection;'^  also  efficiency  of  mind 
and  body  ;  also  business  habits  and  experience  in  the  manage- 
ment of  estates.'"  A  bankrupt  or  an  insolvent  is  an  unsuitable 
person  for  the  trust  of  administrator,  especially  if  embarrassed 
habitually."  One  may  be  considered  unsuitable  for  the  appoint- 
ment, who  holds  already  some  other  trust,  whose  interests  de- 
cidedly conflict  with  those  of  the  estate  in  question.'''  Or  who 
is  largely  indebted  to  the  estate,  especially  if  the  amount  due  has 

'  See /(^j/,  §  132,  as  to  administration  Harrison,    6   N.    Y.    443;   Emerson   v. 

during  minority ;  Taylor  w.  Delancey,  2  Bowers,    14   N.  Y.  449.     The  question 

Cai.  (N.  Y.)  Cas.  143;  Moore  z/.  Moore,  as  to  "improvidence"  is  whether  it  is 

I  Dev.  (N.  C.)  268.  such  as  is  likely  to  endanger  the  safety 

^  Nusz  J'.   Grove,   27  Md.  391  ;   Alte-  of  the  estate.     5  Dem.  (N.  Y.)  456. 

mus's  Case,  i  Ashm.  49.  ^  Coope  v.  Lowerre,    i  Barb.  Ch.  45  ; 

3  ic8  Cal.  484.  McMahon  v.  Harrison,  6  N.  Y.  443. 

*  Emerson  v.   Bowers,  14   N.  Y.  449.  '°  Stephenson  r'.  Stephenson,  4  Jones 

'  Elmer  z/.  Kechele,  i  Kedf.   (N.   Y.)  L.  472;  Williams  r'.  ^Vilkins,  2  Phillim. 

472.  100. 

*3  Demarest,  263.  "  Cornpropst's  Appeal,  33   Penn.  St. 

'  Bingham  r-.  Crenshaw,  34  Ala.  693.  537;   Bell  ~c<.  Timiswood,  2   Phillim.  22. 

8  Smhh  V.  Young,  5  Gill,  197.  "Con-  Cf.  Tilley  v.  Trussler,  26  W.   R.  760 ; 

viction    of   infamous   crime  "  is    some-  Levan's    Appeal,    112    I'enu.    St.    294; 

times    a   statute  disqualification;  t.  e.,  §  154.     A  .steady  industrious  man  is  not 

conviction  of  an  offence  against  local  disqualified  by  reason  of  owdng  a  small 

law.      O'Brien   He,   3   Demarest,    156.  sum   on  old  debts.      Levan's    Appeal, 

Nor  semhle  is    legal  dishonesty,   as  in  112  Penn.  St.  297. 

theft,  etc.,  "improvidence."  lb.  Other-  "  State  z'.  Reinhardt,  31  Mo.  95.  Cf. 

wise   as    to    gambling.     McMahon    -,•.  ^Vright  ?'.  Wright,  72  Ind.  149. 

138 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    105 

not  been  ascertained.  Or  who  was  partner  of  the  deceased  at 
the  time  of  his  death."  Or  who  is  hostile  to  another  of  the 
next  of  kin.^  Or  who  is  otherwise  so  adversely  interested  to 
heirs,  creditors,  or  other  kindred,  as  to  prejudice  the  due  set- 
tlement of  the  estate,  if  placed  under  his  charge.^  For  the 
administrator  should  be  interested  in  settling  the  estate,  not 
unfaithfully  or  partially,  but  faithfully,  and  for  the  welfare  of  all 
concerned.'* 

Unsuitableness  is  not  overcome  by  the  fact  that  the  party 
personally  unsuitable  is  ready  to  give  ample  bonds  with  sureties 
for  the  faithful  performance  of  his  trust ;  though  this  is  doubt- 
less of  great  advantage  to  overcome  a  doubt.  For  it  is  just 
neither  to  parties  in  interest  nor  to  those  offering  to  become 
bondsmen,  that  in  an  office  of  trust  the  chief  reliance  must  be 
placed  upon  the  security,  instead  of  the  principal ;  nor  can 
remedies  for  mismanagement  compensate  for  detriment  suffered 
through  the  want  of  good  management.^ 

§  105.  The  same  Subject;  Suitableness  as  between  Males  and 
Females,  the  Elder  and  Younger,  etc.  —  Next,  we  observe  that  by 
the  old  rule  males  have  no  legal  preference  over  females,  in  the 
grant  of  administration  to  the  next  of  kin,  though  in  the  suc- 
cession of  lands  feudal  law  pronounced  otherwise.  But  on  prac- 
tical considerations  of  suitableness,  where  the  settlement  of  an 
estate  is  involved  and  various  kindred  are  to  be  protected, 
woman  herself  generally  desires  a  man's  management ;  and 
hence,  aside  from  the  discretionary  choice  of  a  court,  there  are 
American  statutes  which  distinctly  place  the  male  next  of  kin 

'  Cornell  v.  Gallagher,   16  Cal.  367  ;  letters  shall  not  be  granted  to  any  per- 

Brown's  Estate,  11  Phila.  (Pa.)  127.  son  adjudged  to  be  incompetent  to  exe- 

^  Drew's  Appeals,  58  N.  H.  317.        .  cute  the  trust  "by  reason  of  drunken- 

3  Pickering  v.  Pendexter,  46  N.  H.  69  ;  ness,  improvidence,  or  want  of  under- 
Moody  z*.  Moody,  29  Ga.  515;  Heron,  standing."  See  McMahon  j/.  Harrison, 
Estate  of,  6  Phila.  (Pa.)  87.  The  fact  6  N.  Y.  443.  Some  statutes  appear  to 
that  one  of  the  kindred  is  a  creditor  is  extend  the  incompetency  which  may 
rather  unfavorable  than  favorable  to  his  arise  from  illiteracy  and  ignorance  of 
selection.  Webb  v.  Needham,  i  Add.  accounts  and  business.  Stephenson 
494-  v-  Stephenson,  4  Jones  L.  472. 

^  The  New  York  statute  declares  that         ^  See  Stearns  &.   Hske,  18   Pick.  27. 


§    I06  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

before  the  female,  for  receiving  the  appointment.'  So  may  it  be 
thought  fit  that  the  younger  and  less  discreet  should  yield  to  the 
older  under  some  circumstances.-  As  between  several  appli- 
cants of  the  same  degree  of  kinship,  therefore,  the  court  may 
prefer  a  male  to  a  female  and  an  older  and  more  discreet  to  a 
younger  applicant,  all  other  things  being  equal. ^ 

§  1 06.  Suitableness  as  concerns  Married  Woman ;  Husband's 
Administration  in  Wife's  Right.  —  Local  statutes  are  also  found 
to  gi\e  unmarried  women  the  appointment  in  preference  to 
married  women. •♦  Legislation  may  debar  the  husband  of  a 
woman  who  is  entitled  to  administer  from  succeeding  by  the 
marriage  to  her  right. 5  But  the  old  and  familiar  rule,  English 
and  American,  is  that,  while  property  held  by  the  wife  in  a 
representati\'e  capacity  at  the  time  of  marriage  cannot  vest  per- 
sonally in  the  husband,  he  acquires,  nevertheless,  the  right  to 
perform  her  trust,  on  the  assumption  that  she  becomes  inca- 
pacitated by  marriage  from  performing  it.  In  this  sense  it  is 
said  that  if  the  wife  be  executrix  or  administratrix  at  the  time 
of  her  marriage,  the  husband  may  administer  in  her  right ;  ^ 
also  that  he  becomes  co-administrator  in  the  sense  of  being 
liable  for  all  her  further  acts  of  administration. ^  Changes  in 
this  doctrine  are  introduced  by  modern  equity,  and  the  married 
woman's  acts;  thus,  the  wife  may  be  sole  fiduciary,  in  England 
and  some  American  States,  with  her  husband's  consent,*^  or  per- 

'  2  N.  V.  Rev.   Stat.  74,  §  28 ;  Cook  Gill,  197  ;  Curser,  Re,  89  N.  Y.  401  ;  re- 

V.  Carr,    19  Md.  i.     But  other  consid-  versing  25  Hun,  579. 

erations,  such  as  minority  or  non-resi-  '  Richards   v.    Mills,    31    Wis.    450 ; 

dence   of  male    relatives,   may  control  Barber  v.  Bush,  7  Mass.  510. 

this  wise  rule.     Wickwire  ?'.  Chapman,  ^  Schoul.  IIus.  &  Wife,  §    163;   Dar- 

15  Barb.  302.  dier  ?'.  Chapman,  L.  R.   11  Ch.  D.  442; 

*  Wms.  Exrs.  427;   i  Phillini.    125;  4  Woodruffe  v.   Cox,  2    Bradf.  Sur.  153; 

Ilagg.  376.     Though  not,   of  course,  in  Keister  t>.  Howe,  3  Ind.  268;  Ferguson 

any  such  sense  as  to  set  up  the  rule  of  v.  Collins,  8  Ark.  241  ;  Pistole?'.  Street, 

primogeniture.  5  Port.  (Ala.)  64. 

3  Hill's  Case,  55  N.  J.  Eq.  764.  '  Dowty  v.  Hall,  83  Ala.  165. 

■*  2  N.  V.  Rev.  Stat.  74,  §  28 ;  Owings  *  Stewart,  In  re,  56  Me.  300  ;  Binner- 

V.  Bates,  9  Gill,  463.     This  preference  man  v.  Weaver,  8  Md.  517  ;  Wms.  Exrs. 

applies   where  the  intestate  leaves  two  450;  Schoul.   Hus.  &   Wife,  appendix, 

daughters,  one  of  whom  is  married  and  A     w'oman    appointed     administratrix 

the  other  is  not.     Smith  t.   ^'oung,   5  whik'  sole  is  permitted  by  some  codes 

140 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    I07 

haps  without   it;'    and  provision   is  made    for    the    husband's 
joinder  in  his  wife's  official  bond.-' 

If  the  wife  be  executrix  or  administratrix,  and  dies  intestate, 
administration  de  bonis  jwn  as  to  such  estate  is  proper ;  and 
l^arties  in  interest  have  the  right  to  be  considered  for  the  new 
appointment,  rather  than  lier  surviving  husband.'  The  same 
effect  is  sometimes  given  by  statute  to  the  marriage  of  a  single 
woman.  "• 

§  107.  Unsuitableness  as  to  Insane  Persons;  Infants;  Corpora- 
tions, etc. —  Insane  persons  are  doubtless  unsuitable  for  the 
personal  trust  of  administrator,  and,  indeed,  incompetent  to 
serve. 5  So,  too,  are  infants.''  A  corporation  cannot  lawfully 
be  appointed,  unless  the  right  to  administer  has  been  expressly 
conferred  in  its  charter.^  In  general  a  cestui  que  trust,  if  nat- 
ural and  competent,  is  entitled  rather  than  his  trustee."^  The 
usual  disqualifications  of  an  executor  extend  to  administrators  ; 
and  other  disqualifications  are  sometimes  annexed.'' 

In  the  case  of  a  sole  next  of  kin  who  is  insane  and  incapable, 

to   resign    her  trust    on    her    marriage.  And  .see  New  York  statute  construed  in 

Rambo  v.  Wyatt,  32  Ala.  363.  McMahon  v.  Harrison,  6  N.  Y.  443. 

'Administration   granted    to   a  wife         *  See /(7j^,  §  132,  as  to  administration 

living  apart  from  her  husband  under  a  during  minority.       And   see  Carow  v. 

deed  of  separation.     Hardinge,  Goods  Mowatt,  2   Edw.  (N.  Y.)  57  ;  Collins  7j. 

of,    2    Curt.   640.     And  see    Maychell,  Spears,  i  Miss.  310.     That  the  minor  is 

Goods  of,  26  W.  R.  439.  married  does  not  qualify  her.      Briscoe 

^  Airhart    ?-.   Murphy,   32   Tex.    131  ;  v.  Tarkington,   5    La.   Ann.  692.     Nor 

Cassedy  T/.  Jackson,  45  Miss.  397.  that  there  is  no  other  next  of  kin  capa- 

33  Salk.  21;   Wms.  Exrs.  416.     See  ble  to  administer.      Rea  v.  Englesing, 

Risdon,  Goods  of,  L.  R.  i  P.  &  D.  637.  56  Miss.  463. 

^  See  Mass.  Gen.  Stats,  c.   loi,   §  i,         ^Thompson's   Estate,  2,t^   Barb.   334. 

which    specifies,  as  a  proper   case  for  See  §  114. 
granting   administration   de   bonis  non,         ^  lb. 

that  of  the  marriage  of  a  single  woman         '  i  Wms.  Exrs.  449  mentions  attain- 

who  is  sole   executrix,    etc.     And   see  der  of  treason  or  felony,  outlawry,  etc. 

next   chapter    as  to   administration   de  The  statute  of  New  York  enumerates 

bonis  non.     A  married  daughter's  right  among    other  special    disqualifications, 

to  administer  her  father's  estate,  if  not  the    conviction  of  an  infamous  crime, 

unfit,  is  conceded  in  Guldin's  Estate,  81  See  McMahon  v.  Harrison,  6  N.  V.  443. 

Penn.  St.  362.  And.see  Stat.  ;i2,  &  34  Vict.  c.  23 ;   Wms. 

5  McGooch  V.  McGooch,  4  Mass.  348.  Exrs.  435. 

141 


§    I09  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

his  duly  appointed  guardian  may  be  allowed  to  administer  in  his 

stead.' 

§   1 08.    Illegitimate  Children  and  their   Right   to  Administer. — 

As  to  illegitimacy,  the  peculiar  rules  of  distribution,  as  defined 
by  statute,  must  be  applied  for  determining  the  right  to  admin- 
ister ;  whether  the  case  be  one  of  an  illegitimate  decedent  or  of 
illegitimate  relationship  to  a  decedent.^ 

§  1 09.  Whether  Non-residence  disqualifies.  —  Non-residence  is 
an  objection  to  the  appointment  ;  ^  but  in  practice  not  usually 
a  decisive  one,  especially  as  between  residents  in  different  parts 
of  the  United  States.  But  it  is  sometimes  said  that  a  non- 
resident ought  only  to  be  appointed  under  special  justifying 
circumstances  ;  and  some  States  treat  such  appointments  as 
quite  impolitic'  Some  States  permit  the  non-resident  ne.xt  of 
kin  to  serve  as  administrator  upon  duly  qualifying  with  resi- 
dent sureties ;  and  in  Massachusetts  such  an  administrator 
must  further  appoint  a  resident  attorney  who  shall  accept  ser- 
vice on  his  behalf  and  in  general  represent  him. 5  So  might  the 
resident  nominee  of  a  non-resident  kinsman  be  taken  where  no 
suitable  kinsman  within  the  State  desired  to  administer.*^  Alien- 
age is  considered  no  incapacity  in  England  as  concerns  personal 
estate  ;  but  some  American  statutes  exclude  or  restrict  the  right 
of  aliens,  and  particularly  non-resident  aliens,  to  administer.^  As 
among  next  of  kin,  some  resident  and  some  non-resident,  those 
resident,  if  otherwise  suitable,  or  their  nominee,  would  seem 
worthy  of  a  preference.^     Where  in  fact  several  i)crsons  are  of 

'  (1894)  P.  160;  Mowry  f.  Latham,  17  Frick's  Appeal,  1 14   Penn.  St.  29.     Cf. 

R.  I.  4S0.  44  Hun  (N.  Y.)  67. 

2SeePul)!ic  Administrator  7'.  Hughes,  5  Mass.     Public    Stat.    c.     132,   §    S; 

I  Bradf.  125  ;  Pico's  Estate,  56  Cal.  513  ;  Robie's  Estate,  Myrick  (Cal.)  226.    And 

Ferrie  z/.  Public  Administrator,  3  Bradf.  see   Barker,    Ex  parte.   2    Leigh,  719; 

249;    Schoul.  Dom.   Relations,  §  276;  Jones  v.  Jones,  12  Rich.  623. 

Wms.  Exrs.  433  ;  Goodman,  Re,  L.  R.  *Smith    v.  Munroe,    i    Ired.   L.   345. 

17  Ch.  D.  266.  See/^j^S  116,  to  Public  Administrator. 

3  Child  z/.  Gratiot,  41    111.   357;   Rad-  '  Wms.  Exrs.  449  ;  New  York  Stats., 

ford  V.  Radford,  5    Dana,   156;  Wick-  cited   Redf.   Surr.    Pract.   138;  4  Dem. 

wire  V.  Chapman,  15  Barb.  302.  (N.  Y.)  33. 

*  Chicago  R.  v.  Gould,  64  Iowa,  343;  «5  Dem.  (N.  Y.)  292  ;  (1898)  P.  11. 
Sargent,  Re,  62  Wis.  130;  63  Cal.  45S; 

142 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    IIO 

the  same  degree  of  kindred  to  the  deceased,  one  living  out  of 
the  State  is  not  entitled  to  administration  as  of  right ;  but  in  case 
those  living  in  the  State  are  unsuitable,  upon  stronger  grounds 
the  non-resident  may,  at  the  discretion  of  the  court,  be  ap- 
pointed upon  the  non-residence  terms.'  English  practice  recog- 
nizes the  grant  of  administration  to  the  attorney  of  next  of  kin 
residing  abroad.'' 

§  IIO.  other  Considerations  for  determining  the  Choice  of  Ad- 
ministrator.—  One  determining  consideration  between  next  of 
kin,  in  cases  of  doubt,  may  be  their  relative  extent  of  interest.^ 
But  another  important  one  is,  the  confidence  reposed  by  kin- 
dred ;  and  hence,  in  cases  of  conflict,  it  is  not  unfrequent  to 
appoint  the  one  upon  whom  a  majority  of  the  parties  in  interest 
agree.''  The  wishes  of  the  party  or  parties  having  the  largest 
amount  of  interest  may  in  other  respects  preponderate  in  the 
selection  of  administrator.5  The  party  first  seeking  the  appoint- 
ment has  some  claim  to  preference.^  These,  and  the  other 
considerations  already  set  forth,  which  touch  rather  upon  per- 
sonal suitableness  or  competency  for  the  trust,  the  court  taking 
jurisdiction  should  duly  weigh,  where  controversy  has  arisen, 
and  grant  the  administration  to  such  party  or  parties  in  the  pre- 
ferred class  as  shall  seem  most  proper.^ 

'  Pickering z'.  Pendexter,  46  N.  H.  69.  'In  English  practice,  it  is  said,  a  sole 

^Wms.  Exrs.  439  ;  Burch,  Goods  of,  administration  is  preferable,  f<?/^w/ar- 

2  Sw.  &  Tr.  139.  ifius,  to  a  joint  one,  and  a  joint  admin- 

^Leverettz/.  Dismukes,  10  Ga.  98.  istration  will  never  be  forced.     Wms. 

^Mandevillez'.  Mandeville,  35  Ga.  243.  Exrs.  428;  2  Phillim.   22,55;  4  Hagg. 

This  course  is  sometimes   directed  by  376,  398.      But   where  the  estate  is  a 

statute.      But  it  is  an  old   established  large  and  intricate  one  to  settle,  the  ap- 

rule  in  English   ecclesiastical  practice,  pointment  of  two  or  three  administra- 

I  Freem.  258  ;  Wms.  Exrs.  426;  Budd  tors  may  be  quite  judicious  in  the  inter- 

r'.  Silver,  2  Phillim.  115.      The  rule  is  est  of  kindred,  and  in  American  practice 

by  no  means    invariable.      Wet  drill  7/.  the  court  may  probably  exercise  a  liberal 

Wright,  2  Phillim.  248.     See  also  Stain-  discretion  in  this  respect.     See  Reed  v. 

ton.  Goods  of,  L.  R.  2  P.  &  D.  212.  Howe,  13  Iowa,  50.     Two  separate  co- 

'  McClellan's    Appeal,  16    Penn.   St.  ordinate    administrations     cannot     be 

IIO.  granted.     Brubaker's  Appeal,  98  Penn. 

^  Cordeux  v.  Trasler,   29   Jur.   N.  S.  St.  21. 
587  ;  Wms.  Exrs.  427,  428. 


§112  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

§111.  Statute  Order  among  Next  of  Kin  stated.  —  Following 
the  computation  of  kindred  already  set  out,  and  observing  the 
preferences  of  interest,  the  codes  of  many  States  now  specify 
in  order  the  classes  who  shall  be  entitled  to  administer,  if  other- 
wise competent.  After  providing  as  to  surviving  husband  or 
widow,  they  name  first,  children  (with  their  lineal  descendants, 
it  may  be  presumed) ;  next,  the  father  ;  next,  the  mother  (or 
else  mother,  brothers  and  sisters)  ;  next,  if  there  are  neither 
children  nor  parents,  the  brothers  and  sisters  ;  next,  the  grand- 
parents ;  next,  nephews,  nieces,  uncles,  aunts  ;  next,  first 
cousins.' 

On  ]:)rinciplc,  it  would  appear,  that,  as  in  distribution,  the 
right  to  administer  as  "  next  of  kin  "  is  limited  to  the  class 
which  fulfils  that  description  at  the  intestate's  death,  and  takes 
the  surplus ;  thus  excluding  more  distant  kindred  not  bene- 
ficially entitled.-  But,  according  to  the  law  of  certain  States, 
where  the  nearest  of  kin,  from  death  or  incompetency,  cannot 
receive  letters,  the  next  in  order  appear  to  be  entitled  ;  kindred 
in  a  due  turn  of  choice  taking  the  absolute  precedence  of  cred- 
itors or  strangers.^  Beyond  the  range  of  husband,  wife,  and 
distributees,  who  alone  have  the  legal  right  to  administer,  the 
appointment  in  Mississippi  is  treated  as  within  the  ample  dis- 
cretion of  the  court.'  American  statutes  vary  greatly  in  scope, 
however,  and  in  each  State  the  law  must  be  construed  accord- 
ing to  the  legislative  expression. 

§  112.  Renunciation  or  Non- Appearance  of  those  entitled  by 
Preference  to  administer  ;    Citation. —  l^eforc  creditors  and  Stran- 

'  See    Wms.    K.xrs.  425  ;   2    Bl.   Com.  Accordingly,  if  all  who  were  ne.xt  of  kin 

505.     The  order  under  the  New   ^'ork  at  the  time  of  the  intestate's  death  are 

statute  is  peculiar;  viz.:  first,  the  intes-  dead,  then  the   representative  of  such 

tate's    widow;    second,    his    children;  ne.xt  of  kin,  in  default  of  some  person 

third,    his  father;  fourth,   his  mother;  originally  in   distribution,  may  receive 

fifth,   his   brothers ;    .si.xth,   his   sisters ;  the  appointment.      Wms.  Exrs.  437  ;  2 

seventh,  his  grandchildren;  eighth,  any  Hagg.  .\ppendix,  157. 

of  the   next  of  kin  who  would  be  en-  'Churchill  v.  Prescott,  2  Bradf.  304; 

titled  lo  share  in  the  distribution  of  the  Carthey  v.  Webb,  2  Murph.   268;  An- 

estate.  derson  v.  Potter,  5  Cal.  63  ;  McClellan's 

^  Such  is  the  rule  in    Ma.ssachusetts.  Appeal,  16  Penn.  St.  no. 

Cobbz/.  Newcomb,  19  Pick.  337.     And  *  Byrd  t^.  Gibson,  2  Miss.  568. 
it  is  the  English  rule.     Wms.  Exrs.  437. 

144 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    112 

gers  in  interest  can  be  admitted  to  the  trust,  it  is  usual  to  wait 
a  reasonable  time  and  require  proceedings  on  the  part  of  the 
petitioner  tantamount  to  summoning  those  entitled  by  prefer- 
ence to  appear  and  exercise  their  right  if  they  so  desire.  For 
the  rule,  long  established  in  ecclesiastical  and  probate  practice, 
is  that  the  party  having  a  prior  right  should  be  cited,  or  else 
waive  his  right,  before  administration  can  be  granted  to  any 
other  person.'  The  citation  is  sometimes  by  a  personal  service; 
but  frequently,  in  our  modern  practice,  by  posters  or  a  simple 
newspaper  publication,  the  method  being  fixed  by  statute  or  a 
rule  of  court,  and  the  citation  issuing  from  the  register's  office 
when  the  petition  to  administer  is  presented  ;  the  course  being 
similar  to  that  pursued  in  obtaining  letters  testamentary,  and  as 
preliminary  to  the  formal  hearing.  To  dispense  with  the  cita- 
tion, those  of  the  class  entitled  to  preference  should  renounce 
their  claim  or  signify  their  assent  to  the  grant  of  the  petitioner's 
request  by  indorsement  upon  the  petition  or  other  writing  of 
record.^  And  grant  of  letters  by  the  court  should  follow  reason- 
ably soon  upon  the  citation,  as  otherwise  a  new  citation  or  notice 
may  be  requisite.^ 

A  similar  procedure  appears  highly  suitable  where  one  of  the 
class  entitled  to  preference,  desires  an  appointment,  as  against 

■  Wms.  Exrs.  440,  448  ;  barker,  Goods  ministration  of  the  estate  of  an  intestate 

of,  I  Curt.  592.     For  the  English  prac-  may  be  granted  to  his  widow  or  next  of 

tice  of  citation,  where  the  next  of  kin  is  kin,  or  both,  as  tlie  probate  court  shall 

insane,  see  Windeatt  v.  Sharland,  L.  R.  deem  fit;  and  if  they  do  not  either  take 

2  P.  &  D.  217.     And  see   Grierson,  In  or  renounce  administration,  they  shall, 

re,  7   L.  L.  R.  Ir.  589.      Letters  issued  if  resident  within  the  county,  be  cited 

in  disregard  of  the  rule  on  this  subject  by  the  court  for  that  pui-pose.     Cobbz'. 

are  invalid,  and  this  although  the  stat-  Newcomb,  sup^-a  :  Stebbins  v.  Lathrop, 

ute  is  silent   on  the  subject  of  giving  4  Pick.  33.     As  to  affidavit  that  citation 

notice  to  those  having  the  preference,  was  given,  see  Gillett  v.  Needham,  37 

Gans  V.    Dabergott,  40   N.  J.  Eq.  184.  Mich.  143.     A  citation  in  South  Caro- 

But  such  letters  are   not  void,  but  only  lina  has  sometimes  been  published  by 

voidable.      Garrison  v.  Cox,  95    N.  C. ,  being  read  in  church  by  an  officiating 

353;  Jones  z/.  Bittenger,  no  Ind.  476;  clergyman.     Sargent  z/.  Fox,  2  McCord, 

post,  c.  6.  309.     Some  codes  expressly  insist  that 

^Cobb  V.   Newcomb,   19   Pick.   336;  renunciation  by  those  having  prior  right 

Arnold  v.  Sabin,  i  Cush.  525  ;  Talbert,  .shall   be  in   writing.      Barber  v.   Con- 

Succes.sion  of,  16   La.  Ann.  230;  Tor-  verse,  i  Redf.  (N.  Y.)  330. 
ranee  v.  McDougald,  12  Geo.  526.     The         ^  Elgutter  7.'.  Missouri  R.,  53  Neb.  748. 
Massachusetts  statute  provides  that  ad- 

10  143 


§113  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

Others  of  the  same  class  and  equal  in  right.  But  where  several 
are  equally  entitled,  and  in  general  as  among  those  from  whom 
the  court  is  free  to  select  without  disturbing  a  statute  preference 
or  violating  legislative  directions,  the  citation  is  sometimes  dis- 
pensed with.'  So,  again,  in  small  estates,  on  proof  of  actual 
notice.^  A  court  is  presumed  to  exercise  its  lawful  discretion 
fairly  in  such  a  case ;  and  although  parties  passed  over,  who 
have  the  statute  priority,  may  have  the  administration  set  aside 
or  reversed  on  appeal,  when  granted  irregularly  and  in  disre- 
gard of  their  lawful  rights,  the  appointment,  nevertheless,  re- 
mains valid  meantime,  if  the  court  had  jurisdiction,  and  cannot 
be  assailed,  except  directly  and  by  the  parties  aggrieved.^ 

Renunciation  or  waiver  of  the  right  should  appear  of  record 
in  order  to  bind  the  parties  first  entitled  to  administer ;  nor  is 
the  language  of  such  a  writing  to  be  strained  beyond  the  obvi- 
ous sense.''  Thus,  where  all  the  next  of  kin  consent  that  one 
of  them,  A.,  shall  serve  if  he  can  find  security,  and  A.,  unable 
to  give  security,  nominates  a  stranger,  this  does  not  comply 
with  the  condition. 5  But  persons  sni  juris  who  voluntarily  ap- 
pear and  participate  in  the  proceedings  as  shown  by  the  record, 
cannot  set  up  informality  of  citation  against  the  judgment,^ 

§  I  I  3.  Nomination  of  a  Third  Person  by  the  Person  entitled  to 
administer. — It  is  held   that  a  renunciation  of  her  claim  by  the 

'  See  Widger,  Goods  of,  3  Curt.  55  ;  Wilby,  3  Phillim.  379.     Probably  under 

Wms.  Exrs.  448;  Peters  v.  Public  Ad-  some  of  our  American  codes  this  would 

ministrator,  i  Bradf.  (Sur.)  200.    And  see  not  be  permitted,  unless,  at  all  events, 

statute   cited   in    Bean  v.   Bumpus,  22  good    reason   for    the    retraction  was 

Me.  549,  as  to  dispensing  with  notice  in  shown.       See  Carpenter   v.    Jones,  44 

certain  cases.  Md.  625;  74   Md.  238;  Kirtlan,  Estate 

^(1896)  P.  6.  of,  16  Cal.  161.     But  executors  and  ad- 

^See/>osi,  c.  6,  as  to  effect  of  appoint-  ministrators  appear  to  be  alike  favored 

ment,  etc.  in  New  York  as  under  the  English  rule. 

*  Arnold  v.  Sabin,  i  Cush.  525.  Casey  v.  Gardiner,  4  Bradf.  (N.  Y.)  13. 

5  Rinehait  v.  Rinehart,  27  N.  J.  Eq.  Cf.  §  50. 
475;  McClellan's  Appeal,  16  Penn.  St.  The  law  will  not  sanction  an  agree- 
no.  It  is  held  in  England  that  where  ment  whose  con.sideration  is  the  relin- 
a  party  entitled  to  administer  has  re-  quishment  of  the  right  to  administration 
nounced,  such  renunciation  may  be  re-  by  one  party  to  the  other.  Bowers  v. 
tracted  at  any  time  before  the  adminis-  Bowers,  26  Penn.  St.  74. 
tration  has  passed  the  seal.     West  7'.         ''49  Neb.  8. 

146 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    113 

widow  does  not  give  her  the  right  to  nominate  another  person 
to  the  exchision  of  the  next  of  kin.'  Nor  can  kindred  who 
waive  the  right  to  serve  dictate  the  selection  of  a  stranger.^ 
But  in  Kentucky,  the  court,  in  granting  administration  to  the 
widow,  may,  at  her  request,  associate  with  her  a  stranger  in 
blood  to  the  intestate,  although  the  blood  relatives  object.^  And 
in  New  York,  where  a  widow  renounced  her  right  to  adminis- 
ter her  husband's  estate,  and  recommended  another  person,  all 
the  children  being  minors,  the  appointment  of  her  nominee  was 
considered  proper.^  Even  granting,  as  we  must,  that  the  court 
is  not  bound  by  the  nomination  made  by  a  widow  or  the  kin- 
dred first  entitled  to  administer,  yet  the  wishes  and  preferences 
of  those  having  the  greatest  interest  in  preserving  the  estate 
are  entitled  to  great  weight. 5  And  hence  the  appointment,  at 
the  court's  discretion,  of  any  suitable  person  upon  whom  the 
next  of  kin  entitled  to  the  office,  or  a  majority  of  them,  may 
agree,  is  highly  favored  in  American  practice;^  the  rights  of 
more  remote  kindred,  creditors  and  all  strangers  in  interest  be- 
ing postponed  to  their  expressed  choice  accordingly.  Where 
the  next  of  kin  reside  abroad,  their  resident  nominee  may  re- 
ceive the  appointment  -^  any  such  attorney,  so  called,  however, 
being  responsible  to  all  parties  in  interest.^     And  where  widow 

'Cobb   V.   Newconib,   19    Pick.    332.  lied.  L.  345  ;  Wms.  Exrs.  439 ;  Cotter's 

And  see  Triplett  v.   Wells,  Litt.  (Ky.)  Estate,  54  Cal.  215;  93  Cal.  611.     But 

Sel.  Cas. 49.     Under  Maryland  statutes  in  other  cases  except  for  the  "special 

the  right  of  administration  cannot  be  circumstances,"  etc.,  under  recent  stat- 

delegated.       Georgetown     College     -'.  utes,  the  right  to  select  a  third  person 

Browne,  34  Md.  450.     And  as  to  Cali-  appears  not  to  be  favored  in  English 

fornia,  see  Shiels,  Re,  120  Cal.  347.  practice.      See  Wms.   Exrs.  446,  447  ; 

^Cresse,  Matter  of,  28  N.  J.  Eq.  236 ;  Stat.  20  &  21  Vict.  c.  77,  §  73.     Unless 

Root,  Ke,  I  Redf.  257.  it   be  some  one  related  to  the  family. 

3  Shropshire  z/.  Withers,  5  J.  J.  Marsh.  Tyndall,  Goods  of,  30  W.  R.  231.     An 

210.  impartial  stranger  may  be  preferable  to 

••Sheldon  v.    Wright,    5    N.   Y.   497.  widow  or  kindred  where  these  are  un- 

And  this  without  citing  kindred.     lb.  suitable.     Hassinger's  Appeal,  10  Penn. 

5  McBeth  V.  Hunt,  2   Strobh.  (S.  C.)  St.  454. 

335;  McClellan's  Appeal,  16   Penn.  St.  *  Chambers  v.  Bicknell,  2  Hare,  536. 

1 10.  But  the  court  \s\\\  not  grant  administra- 

^Mandeville   v.    Mandeville,    35    Ga.  tion  to  the  attorney-in-fact,  where  the 

243 ;  Munsey  v.  Webster,  24  N.  H.  126  ;  party  himself  is  resident  in  the  jurisdic- 

Halhday  v.  Du  Bose,  59  Ga.  268.  tion,  and  able  to  take  it  himself.     Burch, 

''Supra,  §109;  Smith  v.   Munroe,    t  /;/ ;r,  2  Sw.  &  Tr.  139.     Where  the  sole 


§    114  EXECUTORS    AND    ADMINISTRATORS.  [PARTII. 

and  next  of  kin  unite  in  their  request  for  some  other  suitable 
third  person,  their  nomination  should  be  strongly  regarded.' 

One  who  rightfully  requests  the  appointment  of  another  may 
revoke  such  nomination  at  any  time  before  the  court  has  acted 
upon  it.'' 

Inasmuch  as  the  regular  administration  of  estates,  whether 
testate  or  intestate,  is  so  highly  favored  at  the  present  day,  the 
selection  of  third  persons  of  integrity,  experience,  and  sagacity 
for  such  responsible  duties  must  often  be  most  desirable.  And 
if  a  testator  makes  such  a  selection,  or  associates  others  with 
his  next  of  kin  or  legatees  in  the  trust,  for  reasons  admittedly 
sound,  there  seems  no  good  reason  why  the  next  of  kin  them- 
selves, if  the  estate  be  intestate,  should  not  exercise  a  correspond- 
ing discretion  and  nominate  some  trustworthy  friend  rather  than 
forfeit  all  claim  to  administer  by  failing  to  qualifying  personally 
for  the  office.^ 


§  114.  Unsuitableness  of  a  Judge  of  Probate,  Corporation,  etc., 
for  the  Appointment. —  A  judge  of  probate  would  be  an  unsuit- 
able person  to  receive  the  appointment  from  his  own  hands  or 
within  his  own  jurisdiction  ;  and  delicacy,  moreover,  ought  to 
prevent  any  judge  from  serving  as  administrator  in  an  adjoining 
county,  or  at  least  where  he  might  sometimes  be  called  upon  to 
hold  a  court  ;  though  probate  judges  in  this  country  are  not  al- 
ways found  so  scrupulous  about  taking  advantage  of  their  ofificial 
position,  to  emulate  the  example  of  the  early  English  bishops. 
Legislation  should  curb  such  temptations,  and  keep  local  judges  of 
probate  from  throwing  estates  and  probate  business  into  one  an- 
other's hands.  Probably,  for  a  judge  to  appoint  himself  admin- 
istrator would  be  void,  as  against  public  policy.'*     But  as  to  the 

next  of  kill  was  a  married  woman  living  residents.     Supra,  §109:    Sargent,  /vV, 

apart   from    her    husband,    whose   ad-  62   Wis.    130;   Muer.sing.   AV,    103  Cal. 

dress  was  unknown,  administration  was  585. 

granted  with  her  consent  to  the  trustees  '  See  Swart 's  Estate,  189  Penn.  St.  7 1. 

of  her  marriage  settlement.     Maychell,  ^  Shiels  Re,  120  Cal.  347. 

Goods  of,  26  W.  R.  439.     The  nomina-  ^  As  to  nominee  of  guardians  of  a 

tion  of  a  non-resident  is  not  to  be  fa-  widow,  there  being  no  issue,  see  (1892) 

vored  where  the  policy  of  the  law  dis-  P.  50. 

courages     the     appointment     of    non  '  A  judge  of  probate  interested  in  the 

148 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    I  '5 

appointment  of  his  own  son  by  a  judge  of  probate,  it  is  recently 
held,  that,  although  manifestly  improper  and  even  voidable,  such 
appointment  is  not  void.'  A  trust  company  or  other  corporation 
in  New  York  expressly  empowered  to  administer  may  not  be 
appointed  on  the  request  of  those  entitled  to  administer  so  as  to 
take  priority  even  of  a  public  administrator.-  Yet,  all  other 
things  being  equal,  certain  corporations  chartered  recently  in 
England  and  American  States  are  expressly  empowered  to  serve 
as  executor  or  administrator,  as  well  as  in  other  specified  trusts.^ 

§  115-  Right  of  Creditor  or  Stranger  to  be  appointed  in  Default 
of  Kindred,  etc.  —  A  creditor  having  a  right  of  action  against  the 
deceased  is  in  most  States  the  party  entitled  to  administration 
on  the  intestate's  estate,  where  the  husband  or  widow  and  next  of 
kin  refuse  or  neglect  to  apply,  or  are  incompetent.'*  The  New 
York  statute  specifies  as  to  creditors,  that  the  creditor  first  apply- 
ing, if  otherwise  competent,  shall  have  the  preference.^  The 
largest  creditor,  or  some  principal  creditor  of  the  deceased,  takes 
priority,  according  to  the  expression  of  other  local  codes.^'  By 
Enghsh  practice,  too,  a  creditor  may  take  out  administration  on  an 
intestate  estate,  if  none  of  the  next  of  kin  or  others  in  legal 
priority  do  so  ;  this  rule  resting  in  custom  and  not  statute  law, 
and  the  court  frequently  selecting  a  larger  creditor  instead  of 
the  creditor  applying.^  In  Texas,  however,  such  "  proper  per- 
son "  as  will  accept  and  qualify  is  designated,  and  it  is  held  that 
a  creditor  as  such  has  no  special  claim  to  the  appointment  over 

estate  has  no  right  to  grant   administra-  creditor  has   a  strong  claim.     Lentz  v. 

tion.     Sigourney    v.   Sibley,    22     Pick.  Pilert,  60  Md.  296.      But  a  party  claim- 

507.     And  see  Thornton  v.  Moore,  61  ing  as  trustee  and  not  in  his  individual 

Ala.  347.  capacity,    is    not    entitled   as    "  largest 

'  Plowman  v.  Henderson,  59  Ala.  559  ;  creditor."     74    Md.   234.      Nor   is   the 

79  Ala.  505.  president  of  a  corporation,  where  the 

^  Goddard's  Estate,  94  N.  Y.  544.  latter  is  a  creditor.     95  Ga.  3S3. 

^  See  Hunt's  Goods,  (1896)  P.  288.  '  Wms.  Exrs.  7th  ed.  440-442;  2  Bl. 

■*  Mitchell    V.    Lunt,    4    Mass.   654  ;  Com.  505  ;  2  Cas.  temp.  Lee,  324,  502 ; 

Stebbins  v.  Palmer,  i  Pick.  71.  Maidman  v.  All  Persons,  i    Phillim.  53. 

^  New  York  Laws,   1867,  c.  782,  §  6-  The  applicant  must  makeaffidavh  as  to 

*"  Curtis  V.  Williams,  33  Ala.  570.    As  the  amount,  etc.,  of  his  debt,  and  that 

to    nomination    of    a    third    person    by  he  has  cited  in  the  kindred.    \'on  Uesen, 

creditors,  see   Long  v.  Easly,    13  Ala-  Goods  of,  43  L.  T.  532. 
239.      A    relative   who    becomes    sole 

149 


§115  EXECUTORS    AND    ADMINISTRATORS.  [p ART  II. 

a  confidant  of  the  deceased  not  interested."  Administration 
cannot  in  general  be  granted  to  a  creditor  or  stranger  until  after 
the  lapse  of  the  time  allowed  for  the  application  of  the  widow, 
next  of  kin,  and  others  previously  entitled  and  suitable,  nor  ex- 
cept upon  their  failure  to  pursue  their  rights,  notwithstanding  a 
due  citation.- 

The  reason  why  a  creditor  has  usually  been  selected  under 
such  circumstances,  is  in  order  that  his  claim  may  not  be  lost 
for  want  of  administration  upon  the  estate.^  He  is  a  person  in 
interest.  The  amount  of  one's  claim  seems  not  essential,  except 
it  be  for  preferring  the  principal  creditor.^  But  it  ought  to  be 
a  claim  which  survives  by  law. 5  The  creditor  should  make  affi- 
davit or  be  prepared  to  prove  his  claim  before  the  probate  court, 
as  a  prereciuisite  to  obtaining  the  appointment.''  Administration 
may  be  committed  to  one  or  more  creditors  ;  but  one  is  preferred 
by  the  court  where  the  estate  is  small  and  easily  managed. ^  A 
creditor  having  ample  security,  which  he  could  enforce  without 
an  administration  at  all,  appears  not  to  have  been  favored  for  the 
trust  in  the  English  ecclesiastical  practice,  lest  simple  contract 
creditors  should  receive  detriment  ;'^  and  administration  is  regu- 
larly refused  to  one  who  buys  up  a  debt  after  the  death  of  the 
deceased,  and  so  becomes  a  creditor.'^  Policy,  however,  not 
principle,  seems  to  have  dictated  this  rule  of  refusal,  for  there 

'  Cain  7J.  Haas,  i8  Tex.  616.    And  as  Brackenbury,  Goods  of,  25  W.  R.  698; 

to  Virginia,  see  McCanlish  7a  Hopkins,  Stevens  v.  Gaylord,  11  Mass.  256. 

2  Leigh,  267.  ■»  Arnold  v.  Sabin,  i  Cush.  525. 

^  Mullanpliy  7-.  County  Court,  6  Mo.  'Slebbins   v.    Palmer,     i     Pick.    71; 

563;    Ha.xall    v.    Lee,    2    Leigh,    267;  Smith  z'.  Sherman,  4  Cush.  408.     That 

Wms.  Exrs.  440,  441.      Thirty  days  is  the  claim  would  be  barred,  if  the  statute 

the  period   allowed  in  some  States  to  of  limitations  were  pleaded,  is  held  no 

the   widow  and   next   of  kin,  before  a  objection.      Caig,   Jix  pailc,  T.  U.   P. 

.stranger  can  apply.      Munsey  z/.  Web-  Charlt.  (Ga.)  159;  Coombs?'.  Coombs, 

ster,  24  N.  H.  126;  Cobb  v.  Newcomb,  L.  R.  i  P.  &  D.  288. 

19  Pick.  336;  32  Neb.  480.     vSix  months'  ^  Wms.   Exrs.  442  ;  Aitkin  v.  Ford,  3 

delay  imports  renunciation  of  priority  Hagg.    193.       But    a   formal    filing   of 

in   North  Carolina.      Hill  7/.  Alspaugh,  claim  is  not  requisite.     32  Neb.  480. 

72  N.  C.  402;  95   N.  C.  353.     For  the  ^  Wms.    Exrs.   442;    Harrison  v.   All 

peculiar    limitation    in    Alabama,    see  Person.s,  2  Phillim.  249. 

Davis?'.  Swearingen,  56  Ala.  539.     And  ^Roxburgh  v.  Lambert,  2  Hagg.  557. 

see  Frick's  Appeal,  114  Penn.  St.  29.  'Cole.s,  Goods  of,  3   Sw.  &  Tr.  181  ; 

^Elme  V.    Da  Costa,  i    I'hillim.    177;  Wms.  Exrs.  443. 

150 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    ^^5 

are  admitted  exceptions  ; '  and  not  only  has  a  creditor's  assignee 
in  bankruptcy  been  permitted  to  apply  in  his  stead  ;  ^  but  like- 
wise a  surety  who,  after  the  death  of  his  principal,  has  cancelled 
an  obligation  ;  ^  one,  too,  like  an  undertaker,  whose  claim  accrues 
after  the  death  in  all  strictness,  and  yet  in  connection  with 
rendering  last  offices  to  the  deceased,  such  as  a  preferred  claim 
upon  the  estate  may  well  be  based  upon,  independently  of  ad- 
ministration.'' The  creditor  should,  of  course,  be  a  suitable  and 
competent  person  for  the  trust,  as  in  other  cases,  and  he  should 
give  security  to  administer  ratably,  or  otherwise  comply  with 
the  statute  requirements  as  to  qualifying  for  the  office.^ 

If  there  is  no  husband,  widow,  next  of  kin,  or  creditor,  willing 
and  competent  to  the  trust,  administration  may  be  granted  to 
such  other  person  as  the  court  deems  fit.  Such  has  long  been 
the  English  practice,^  and  statutes  confirm  or  enlarge  this  judi- 
cial discretion  both  in  England  and  the  United  States.^  Distant 
kindred,  having  no  legal  interest  in  the  distribution,  may  thus 
receive  letters  of  administration  ;  or  an  entire  stranger  in  point 
of  blood  and  interest.^  But  a  stranger  who  has  been  hastily  and 
without  reason  appointed,  has  no  status  in  court  to  object  to  the 

'  lb. ;  Downward  v.  Dickinson,  3  Sw.  Wms.  Exrs.  446,  447.    "  Special  circum- 

&  Tr.  564.  stances "    are    recognized,    under    tliis 

'  Wms.     Exrs.    443  ;     Schwertfegen,  English  act,  as  affording  ground  for  de- 
Goods  of,  24  W.  R.  298  ;  and  see  Bur-  parture  from  the  rule  of  priority, 
dett,  Goods  of,  45  L.  J.  71.  *  lb. ;  Keane,  Goods  of,  i  Hagg.  692  ; 

3  Williams  v.  Jakes,  35    L.  J.  P.  M.  &  Wyckhoff,  Goods  of,  3  Sw.  &  Tr.  20. 

A.  60.  We  have  already  seen  that  in  some  of 

*  Newcombe  z'.  Beloe,  L.  R.  i  P.  &  D.  the  United  States  all  kindred  in  order, 

314.  and   not    simply  "next  of  kin,"  in  dis- 

5  Brackenbury,  Goods  of,   25    W.   R.  tribution,  may  have    a   legal    right    to 

698.     The  largest   creditor  may  in  the  administer.     In  case  of  a  lunatic  next 

court's  discretion  be  preferred  to  one  of  kin,  a  stranger  was  appointed,  with 

requested  by  the  majority  of  the  credit-  the  consent   of  the  lunatic's  guardian 

ors  and  by  the  intestate's  widow  besides,  and  own  next  of  kin.     Hastings,  Goods 

O-stendorff,  /?e,  17  S.  C.  22.  of,  47  L.  J.  P.  D.  A.  30.     As  to  "spec- 

'  Wms.  Exrs.  445;.  Davis  7'.  Chanter  ial  circumstances,"  see,  further,  Clark, 

14  Sim.  212.  Goods  of,  25  W.  R.  82  ;  Tyndall,  Goods 

^  Mass.     Pub.     Stats,    c.     130,    §   i  ;  of,  30  W.  R.  231.     Guardians  or  trus- 

Thompson   v.    Hucket,   2   Hill  (S.  C.)  tees  are  thus  substituted.     Bond,  Goods 

347;    Enghsh    ProViate    Act    of     1857  of,  I..  T.  33  N.  S.  71. 
(Stat.  20  &  21   Vict.  c.  77,  §  73)  ;  cited 


§    Il6  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

grant  of  letters  to  the  suitable  next  of  kin,  nor  to  the  revoca- 
tion of  his  own  letters." 

A  creditor  entitled  to  administer  may,  like  parties  prior  in 
right,  renounce  the  trust,  or  fail  to  respond  when  cited  in.^ 

§  I  l6.  Public  Administrator  or  other  OfBcial  appointed  in  Cer- 
tain Cases. —  In  English  practice,  administration  by  a  public 
officer  on  behalf  of  absentee  or  non-resident  parties  in  interest 
is  not  clearly  provided  for.  That  discretion  of  the  court,  to  which 
we  alluded  in  the  last  section,  and  which  may  be  exercised  in 
default  of  competent  creditors  and  next  of  kin,  fastens  upon 
kindred  more  distantly  related,  the  guardian  or  agent  of  an  in- 
competent distributee,  and  other  persons  having  a  remote  in- 
terest, if  such  may  be  had.  But  as  to  an  utter  stranger,  or 
the  mere  appointee  of  the  court  invested  with  authority,  in  the 
total  absence  of  kindred,  it  has  been  deemed  that  letters  of  ad- 
ministration should  only  be  granted  for  such  special  purposes  as 
collecting  and  preserving  the  effects,  and  doing  what  must  be 
strictly  beneficial  to  the  estate.^  The  Court  of  Probate  Act  of 
1857  enlarged  that  jurisdiction  which  the  modern  .spiritual  courts 
had  so  cautiously  exercised,  conferring  upon  the  new  tribunal 
the  power  under  "  special  circumstances  "  to  pass  over  the  per- 
son or  persons  who  might  otherwise  be  entitled  to  the  grant  of 
administration,  and  appoint  such  person  as  the  court  in  its  dis- 
cretion should  think  fit  ;  ^  a  discretion  which  is  usually  exercised 
in  favor  of  more  distant  kindred,   family  connections,  or  the 

'Neidig's  Estate,  183  Penn.  St.  492.  ^-Wms.     Exrs.    445,    446;    Radnall, 

^Carpenter   ?'.    Jone.s,    44    Md.   625.  Goods   of,    2    Add.   232;    Clarkington, 

Such  appointment  of  a  suital:)le  person  Goods  of,  2  Sw.  &  Tr.  380. 

being  discretionary  with  the  judge,  and  *  Act  20  &  21  Vict.  c.  77,  §  73.    This 

the  time  having  expired  within  which  authority   appears   to   be   quite   strictly 

the  next  of  kin  or  creditors  might  have  constnied  by  the  tribunal  in  question, 

appeared,   the   fact   of   their   inconipe-  which  declines  to  make  arbitrary  use  of 

tency   or   unwillingness    need     not    be  its  discretion.     The  section  is  held  not 

alleged  by  the   petitioner   for  appoint-  to  apply  where  there  is  no  absence  of 

ment.     21  Neb.  663.  persons  entitled  to  administration,  etc., 

The  expiration  of  a  certain  time  for  and  no  insolvency  —  insolvency  of  the 

those  having  prior  right  bears  upon  this  estate  being  referred  to  as  one  of  the 

practice.     Markland  v.   Albes,  81    .\la.  "special  circumstances"  alluded  to  by 

433.  the  statute.     See    Hawke  v.   Wedder- 

152 


CHAP.   III.]  APPOINTMENT    OF    ADMINISTRATORS.  §    Il6 

fiduciary  or  agent  of  the  person  beneficially  entitled.     In  our 
next  section  this  subject  will  be  further  examined.' 

But  the  wise  policy  of  the  legislature  has  been,  in  several  of 
the  United  States,  to  commit  administration  to  a  designated  pub- 
lic officer  wherever  those  survivors  are  wanting  whose  vigilance 
should  protect  distribution  and  the  general  interests  of  the  dead 
person's  estate.  To  a  mere  stranger  the  temptation  in  such  a 
case  would  be  to  appropriate  all  to  himself ;  debtors  would  of 
choice  continue  indebted  ;  and  even  a  creditor  who  administered 
in  his  partial  interest  might  plunder  the  estate  under  pretext  of 
asserting  a  legal  claim.  A  probate  court  cannot  readily  keep 
vigilance  over  a  miscellaneous  throng  of  administrators  watched 
by  no  private  persons  in  interest,  nor  see  that  the  security  one 
has  given  remains  good  and  ample.  There  may  be  urgent  need 
of  an  immediate  administration,  notwithstanding  the  absence  of 
a  known  husband,  widow,  or  kindred  ;  these,  if  wanting  at  first, 
may  present  themselves  afterwards ;  and,  in  final  default  of 
such  priority,  the  State  falls  heir  to  the  final  balance  of  the  es- 
tate. Hence,  the  modern  creation  of  an  office,  known  usually 
as  that  of  public  administrator.  The  public  administrator,  re- 
ceiving letters  in  any  and  all  proper  cases  of  intestacy,  collects 
and  preserves  the  estate,  adjusts  all  claims  upon  it,  charges  it 
with  such  compensation  for  his  service  as  the  court  may  approve, 
corresponds  with  the  non-resident  or  absent  husband,  widow,  or 
next  of  kin,  should  such  be  found  out,  and  finally  distributes  the 
residue  according  to  law,  turning  it  into  the  State  treasury  when 
the  administration  is  completed,  unless  the  rightful  claimant  has 
meantime  taken  the  trust  into  his  own  charge  or  established  a 
title  to  the  surplus  as  distributee.  Such  an  officer  is  subject  to 
the  double  scrutiny  of  the  probate  court  and  the  State  Execu- 
tive ;  creditors  and  all  others  in  interest  may  always  inquire  into 
the  sufficiency  of  his  bonds  ;  his  accounts  are  regularly  returned 


burne,  L.  R.  i   P.  &  D.  594,  and  other  to  appear  to  a  citation  by  advertisement, 

cases  cited  in  Wms.  Exrs.  447.  he  must  make  affidavit  that  service  was 

Where  a  creditor  seeks  administra-  attempted  and  failed,  and  that  the  next 

tion  in  default  of  appearance  of  next  of  of  kin  have  no  known  agent  in  England, 

kin  —  as  where  the  latter  are  abroad  or  Von  Desen,  Goods  of,  43  L.  T.  532. 
have  no  known  address  —  and  they  fail  '  See  §  117,  post. 


§    Il6  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

and  recorded  under  special  safeguards  created  by  law  against 
fraud,  embezzlement,  and  concealment ;  while  his  general  official 
bond,  if  such  be  furnished  by  him,  dispenses  with  all  necessity 
of  finding  special  bondsmen  for  numerous  petty  estates,  and  so 
facilitates  an  economical  settlement.  The  public  administrator 
performs  the  usual  functions  and  is  subject  to  the  usual  rules 
which  pertain  to  ordinary  administration  ;  he  holds,  moreover,  a 
public  trust, — insignificant,  perhaps,  but  honorable.  He  is,  in 
a  sense,  representative  and  attorney  of  the  presumed  heir  and 
distributee,  namely,  the  State ;  and,  more  than  this,  he  is  charged 
with  the  concerns  of  all  private  persons  interested  in  the  estate, 
whoever  and  wherever  they  may  be ;  winding  up  the  affairs  of 
the  deceased  on  behalf  of  creditors  and  absent  kindred  accord- 
ing to  their  respective  rights,  if  any  such  there  be.  Intruder, 
as  such  an  official  must  seem  to  sly  pilferers,  exorbitant  claim- 
ants, skulking  debtors,  and  the  whole  swarm  of  meddlesome 
friends  and  spurious  relatives  that  gather  about  the  corpse  of 
him  who  has  left  property  accessible,  but  none  to  represent  the 
title,  the  public  administrator,  rightly  viewed,  is  next  friend  of 
all  who  may  be  legally  concerned,  and  his  authority  should  befit 
the  peculiar  exigencies  under  which  the  law,  with  sound  wisdom, 
invokes  it  ;  requiring  him  to  act  always  with  energy,  usually 
upon  his  sole  personal  responsibility,  and  often  in  the  face  of  a 
bitter,  if  not  superstitious,  opposition.' 

'  The  Massachusetts  statute  provides  the  right  of  administering,  or  requests 
that  if  the  deceased  leaves  no  known  the  appointment  of  some  other  suitable 
widow,  husband,  or  next  of  kin  in  the  person,  if  such  husband,  widow,  heir. 
State,  administration  shall  be  granted  or  other  person  accepts  the  trust  and 
to  a  public  administrator  in  preference  gives  proper  bond ;  and  such  husband, 
to  creditors.  In  each  county  one  or  widow,  heir,  or  other  person  may  be  ap- 
more  public  administrators  are  appointed  pointed  after  letters  of  administration 
by  the  governor,  and  it  is  the  duty  of  have  been  granted  to  a  public  adminis- 
such  administrator,  upon  the  foregoing  tratorand  before  the  final  settlement  of 
state  of  facts,  to  administer  upon  the  the  estate.  So  may  a  will  be  proved 
estate  of  any  person  who  dies  intestate  and  allowed  after  his  letters  are  granted, 
within  his  county,  or  dies  elsewhere  Upon  such  appointment  of  a  successor 
leaving  property  in  such  county  to  be  and  his  qualification,  the  public  admin- 
administered.  But  administration  will  istrator  shall  surrender  his  own  letters, 
not  be  granted  to  the  public  adminis-  with  an  account  of  his  doings,  and  his 
trator  when  the  husband,  widow,  or  an  power  over  the  estate  shall  cease.  Mass. 
heir  of  the  deceased  claims  in  writinf;  I'ub.  Stats,  c.  131.     What  aids  in  dis 

154 


CHAP.    IIl.j  APPOINTMENT    OP'    ADMINISTRATORS.  §    Il6 

A  public  administrator  is  usually  permitted   by  legislation  to 


tinguishing  this  officer  as  one  invested 
with  plenary  powers,  and  not  the  mere 
appointee,  in  fact,  of  the  probate  court, 
is  a  further  provision  that  as  to  estates 
under  twenty  dollars  in  value,  he  shall 
proceed  summarily  without  procuring 
letters  of  administration  at  all,  convert- 
ing assets  into  cash,  and  accounting  di- 
rectly with  the  State  treasurer  for  the 
proceeds.     lb.  §  i8. 

Public  administrators  are  appointed 
in  other  States  with  peculiar  functions 
prescribed  by  statute ;  as  in  New  York, 
Louisiana,  Missouri,  Illinois,  and  Cali- 
fornia ;  such  administration  being  found 
chiefly  useful  at  the  large  centres  of 
wealth  and  population.  The  reported 
cases  are  few  which  relate  to  such  offi- 
cers ;  and  this  is  well,  for  the  estates 
which  reach  their  hands  are  usually  too 
small  to  bear  litigation,  and  require  a 
prudent  management,  consisting  at  most 
of  a  few  thousand  dollars,  and  more 
frequently  of  a  few  hundred  or  less. 
The  public  administrator's  duties  in 
New  York  are  defined  by  statute ;  and 
by  virtue  of  his  office,  and  without  a 
special  delegation  of  powers  by  letters 
of  appointment  from  the  probate  court, 
such  administrator  may  settle  small 
estates  (as  e.g.,  where  the  value  does 
not  exceed  $ioo),  and  in  general  per- 
fonn  the  functions  of  collector  or  spe- 
cial administrator  before  procuring  a 
formal  grant  of  administration.  Redf. 
Surr.  Pract.  175-180.  See  Union  Mu- 
tual Life  Ins.  Co.  v.  Lewis,  97  U.  S. 
Supr.  682.  As  to  Alabama,  see  Mc- 
Guire  v.  Buckley,  58  Ala.  120.  In  Cal- 
ifornia the  status  of  the  public  admin- 
istrator at  the  time  administration  is 
granted  him,  determines  his  compe- 
tency. 100  Cal.  78;  McLaughlin  He, 
103  Cal.  429.  And  legislation  requires 
the  issue  of  letters  to  the  guardian  of 
incompetent  kindred  in  preference.  103 
Cal.  429.     A  resident  devisee  under  a 


will  probated  abroad  is  also  preferred 
to  a  public  administrator.  100  Cal. 
376. 

The  public  administrator  in  New  York 
city  is  entitled  to  administer  where  next 
of  kin  is  not  in  the  State  or  is  othenvise 
disqualified  to  admini.ster.  Public  Ad- 
ministrator V.  Watts,  I  Paige,  357  ;  4 
Dem.  33.  But  cf.  Public  Admini.strator 
V.  Peters,  i  Bradf.  100,  preferring  rela- 
tives in  the  statute  order  named.  Pub- 
lic administrator  is  preferred  in  cases 
of  illegitimacy.  Ferrie  v.  Public  Ad- 
ministrator, 3  Bradf.  249. 

The  city  of  New  \'ork  is,  under  the 
statute,  responsible  for  the  application 
of  all  moneys  received  by  the  public 
administrator  "  according  to  law  "  ;  but 
not  for  effects  unlaw^fuUy  taken  by  him 
as  belonging  to  an  intestate,  but,  in 
fact,  belonging  to  another.  Douglass 
V.  New  York,  56  How.  (N.  Y.)  Pr.  178. 
Grart  of  administration  to  a  public  ad- 
ministrator should  only  be  upon  due 
citation.  Proctor  v.  Wanmaker,  i  Barb. 
Ch.  302.  But  see  5  Dem.  259,  as  to 
irregularities  not  fatal  on  his  part  in 
procuring  the  grant. 

In  Illinois,  contrary  to  the  usual 
policy,  a  creditor  is  preferred  to  the 
public  administrator.     108  111.  128,  444. 

Expressed  wish  of  decedent  or  next 
of  kin  may  be  disregarded  in  California. 
Morgan's  Estate,  53  Cal.  243.  Public 
administrator  preferable,  in  court's  dis- 
cretion, to  the  nominee  of  a  non-resident 
executor  in  that  State.  Murphy's  Es- 
tate, Myrick  (Cal.)  185;  119  Cal.  663. 
And  preferred  to  nominee  of  non-resi- 
dent next  of  kin.  57  Cal.  81  ;  103  Cal. 
585.  Or  to  a  creditor.  64  Cal.  226, 
228.  As  to  preferring  the  public  ad- 
ministrator to  kindred  who  are  not 
"  next  of  kin,"  the  language  and  prac- 
tice under  the  statutes  of  appointment 
must  determine.  .See  Langworthy  v. 
Baker,  23  111.  484;  supra,  §   in.     And 

55 


§  ii6 


EXECUTORS    And    administrators.  [PAkT  It, 


administer  upon  estate  within  his  county  of  any  decedent,  re- 
gardless of  the  place  of  the  latter's  death  or  last  residence.' 


see  Hanover,  AV,  3  Redf.  (N.  Y.)  91. 
Administration  granted  to  the  attorney 
of  a  foreign  administrator,  however,  as 
matter  of  comity,  saving  certain  rights 
of  a  public  administrator.  Hanover, 
Re,  3  Redf.  91.  See  c.  post  as  to  foreign 
and  ancillary  appointments.  Prior  right 
of  pubUc  administrator  over  attorney 
for  disqualified  next  of  kin.  Blank, 
Matter  of,  2  Redf.  (N.  Y.)  443.  But 
the  public  administrator's  right  exists 
only  in  case  of  intestacy.  Nunan's  Es- 
tate, Myrick,  238.  As  to  conflict  with 
creditor,  see  Doak,  Estate  of,  46  Cal. 
573.  Senible  that  if  no  one  else  can  be 
found  for  the  trust,  the  public  adminis- 
trator must  serve.  Calahan  v.  Griswold, 
9  Mo.  784  ;  Johnston  v.  Tatum,  20  Ga. 
775.  In  Louisiana  the  public  adminis- 
trator is  postponed  to  the  attorney-in- 
fact  of  an  heir.  Henry's  Succession,  31 
La.  Ann.  555.  And  otherwise  limited 
as  to  contests.  Miller,  Succession  of,  27 
La.  Ann.  574.  As  to  citing  in  a  widow 
present  in  the  State,  see  Dietrich's  Suc- 
cession, 32  La.  Ann.  364.  In  Louisiana 
a  public  administrator  may  be  appointed 
where  the  executor  is  under  duress  for 
the  murder  of  the  testatrix.  Townsend's 
Succession,  36  La.  Ann.  535.  As  to  a 
trust  company,  see  Goddard's  Estate, 
94  N.  Y.  544. 

The  language  of  some  local  statutes 
requires  not  only  that  the  public  admin- 
istrator shall  yield  to  the  claim  of  any 
one  of  foreign  next  of  kin  to  administer, 
but  also  to  any  suitable  nominee  of  such 
a  kinsman.  However  this  may  be,  the 
writer  thinks  that  a  non-resident  next  of 
kin  should  not  be  permitted  to  nomi- 
nate another  non-resident  to  the  utter 
exclusion  of  the  resident  public  admin- 
istrator and  resident  creditors. 

These  points  may  be  noted  as  to  the 
official  authority  of  a  pulilic  administra- 

'  See  120 
156 


tor.  (i)  Jurisdiction  may  be  claimed 
by  him  on  the  ground  that  the  last 
domicile  or  residence  of  the  intestate 
was  in  the  county  (or  simply  perhaps 
that  the  intestate  died  there),  or  because 
the  intestate  left  property  in  the  county 
to  be  administered,  no  matter  where  he 
died  or  resided  ;  the  facilities  for  admin- 
istration being  extended  as  far  as  possi- 
ble to  all  such  cases  on  a  simple  show- 
ing of  one's  death,  leaving  assets.  But 
property  to  be  administered,  or  some 
occasion  for  granting  administration, 
should  exist  in  either  case.  (2)  This 
public  officer  is  preferred  to  creditors, 
distant  kindred,  unauthorized  strangers, 
and  absent  and  non-resident  next  of  kin, 
as  the  person  on  the  whole  most  suita- 
ble for  managing  and  settling  an  estate 
when  there  is  no  known  husband,  widow, 
or  next  of  kin  to  the  deceased  within  the 
State.  (3)  But  the  priority  of  surviving 
husband,  widow,  and  next  of  kin  claim- 
ing to  administer  is  fully  preserved,  and 
at  any  time  before  the  estate  is  settled, 
should  any  such,  even  if  non-resident, 
appear,  such  a  person's  wishes  and 
claim  to  administer  or  choice  will  be 
respected,  and  the  public  administrator 
must  give  way ;  and  so,  too,  should  a 
will  be  probated.  (4)  Nevertheless, 
the  non-resident  husband,  widow,  or 
next  of  kin  of  an  intestate  may  permit 
the  public  administrator  to  take  or  con- 
tinue in  the  trust  ;  such  officer  being  a 
most  fit  representative  of  non-residents 
interested  who  are  poor  and  ignorant, 
if  the  estate  will  not  bear  great  expense. 
(5)  The  public  administrator,  further- 
more, has  an  interest,  from  his  official 
character,  to  oppose  the  claims  of  all 
pretended  kindred  or  spouses ;  and  as 
atniais  airice,  and  acting  on  behalf  of 
the  State  and  absentees,  heshoulil  take 
heed,  as  a  public  officer,  that  no  false 
Cal.  344. 


CHAP.    III.]  APPOINTMENT    OI"    A  DM  IM.STKATOKS. 


§    117 


§  117.  English  Rule  in  Cases  Analogous  to  Those  which  call 
for  a  Public  Administrator.  —  Public  administration  is  thus  seen 
to  apply  most  especially  to  estates  which,  in  default  of  nearer 
known  distributees,  are  likely  to  go  to  the  State,  subject  to  the 
further  assertion  of  any  such  claims  upon  the  treasury.  The 
estate  administered  may,  however,  be  that  of  a  person  leaving 
a  non-resident  spouse  or  kindred,  or  of  one,  resident  or  non-res- 
ident, whose  kindred  and  family  are  unknown  or  appear  to  have 
died  out.  In  English  practice,  when  a  foreigner  dies  intestate 
within  the  British  dominions,  administration  appears  to  be 
granted  to  the  persons  entitled  to  the  effects  of  the  deceased  ac- 
cording to  the  law  of  his  own  country,  unless  a  question  of  Brit- 
ish domicile  is  raised."  If  the  intestate  was  domiciled  abroad 
or  out  of  English  jurisdiction,  leaving  assets  in  England,  there 
should  be  an  administration  taken  in  England  as  well  as  in  the 
country  of  domicile.^  Where  a  party  entitled  to  administration 
is  resident  abroad,  due  diligence  must  be  used  to  give  him  no- 
tice of  the  application,  before  administration  will  be  granted  to 


claimant  procures  the  estate  or  its  sur- 
plus, and  that  no  one  administers  at  all 
without  furnishing  to  the  court  an  ad- 
equate bond,  in  order  that  the  rights  of 
all  interested  in  the  estate  may  be  prop- 
erly protected.  And  it  is  only  when  a 
person  shown  lawfully  entitled  to  ad- 
minister, or  perhaps  his  resident  nomi- 
nee, or  an  executor  who  has  proved  a 
bona  fide  last  will,  qualifies  locally  by 
furnishing  a  sufficient  bond,  that  the 
prudent  vigilance  of  this  officer  should 
cease. 

The  legislation  regarding  public  ad- 
ministrators, and  particularly  that  of 
Massachusetts,  appears  to  justify  the 
foregoing  statement ;  though  judicial 
exposition,  of  course,  is  wanting,  and 
may  long  be.  Mass.  Pub.  Stats,  c.  131  ; 
ib.  c.  130,  §  I  ;  Cleveland  v.  Quilty,  128 
Mass.  578. 

In  various  States  the  sheriff  of  the 
county  or  the  clerk  of  the  county  courts 
is  designated  as  virtual  public  adminis- 
trator, and  if  no  one  else  can  be  found 

15 


competent  or  willing,  may  be  even  com- 
pelled to  take  the  trust.  Johnson  v. 
Tatum,  20  Ga.  775  ;  Scarce  v.  Page,  12 
B.  Mon.  (Ky.)  311  ;  Williamson  v.  Fur- 
bush,  31  Ark.  539 ;  Hutcheson  v.  Priddy, 
12  Graft.  85.  A  grant  to  the  sheriff 
expires  with  his  term  of  office.  71  Ala. 
504.  But  a  public  administrator  who 
takes  out  letters  is  a  general  adminis- 
trator of  the  estate.  2  Dem.  650.  In 
New  York  the  commissioners  of  emigra- 
tion are  also  empowered  to  act  in  cer- 
tain cases  where  foreigners  die  intestate 
on  the  passage.  Commissioners,  Ex 
parte,  I  Bradf.  (N.  Y.)  259.  And,  out- 
side of  the  city  of  New  York,  the 
county  treasurers  may  exercise  func- 
tions. Ward,  Re,  i  Redf.  (N.  Y.) 
254. 

'  Wms.  Exrs.  429,  430;  i  Add.  340; 
Von  Desen,  Goods  of,  43  L.  T.  532. 
See  generally,  as  to  foreign  and  ancil- 
lary administration,  etc.,  c.  post. 

-  Wms.  Exrs.  430 ;  Attorney-General 
r'.  Bouwens,  4  M.  &  W.  193. 

7 


§    Il8  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

another  party  not  of  his  selection.'  Stat.  24  and  25  Vict.  c.  121, 
§  4,  provides  with  reference  to  all  countries  which  reciprocate 
by  treaty,  that  when  a  subject  of  a  foreign  country  shall  die 
within  the  British  dominions,  leaving  no  person  present  who  is 
rightfully  entitled  to  administer  the  estate,  the  foreign  consul 
may  administer  on  procuring  letters  from  the  proper  court. ^ 

But  in  the  case  of  a  bastard,  or  of  any  other  person  dying  intes- 
tate without  leaving  lawful  kindred,  husband  or  wife,  the  Eng- 
lish sovereign  is  entitled  to  the  surj^lus  as  last  heir  ;  and  the 
English  practice  has  been  to  transfer  by  letters  patent  the  royal 
claim,  with  the  reservation  of  a  tenth  part,  whereupon  the  court 
usually  grants  letters  of  administration  to  the  patentee  as  nom- 
inee of  the  crown.  But  whoever  may  be  appointed  to  the  trust, 
the  right  of  the  crown  by  way  of  distribution  is  not  impaired.^ 
Under  the  modern  statute  15  Vict.  c.  3,  administration  similar 
to  that  of  a  public  administrator  is  recognized,  though  within 
narrow  bounds  ;  for  this  act  provides  that  administration  of  the 
personal  estate  of  intestates,  where  the  crown  is  entitled,  may 
be  granted  to  the  solicitor  of  the  treasury  as  the  crown's  nomi- 
nee. Such  administrator  need  not  give  bonds,  but  in  other  re- 
spects he  is  subject  to  the  usual  obligations  and  has  the  usual 
rights  and  duties  of  an  administrator.-' 

§   1 1  8.    Method  and  Form  of  granting  Letters  of  Administration. 

—  The  method  of  procuring  letters  of  administraticn  is  quite 
similar  to  that  pursued  by  executors  in  obtaining  letters  testa- 
mentary, but  dispensing  with  a  probate.  The  person  claiming 
administration  must  apply  by  petition  in  writing  to  the  probate 
court  having  jurisdiction  of  the  case.     Such  petition  is  usually 

'  Wms.  Exrs.  429;  3  Phillim.  637.  *  Attorney-General  z'.   Kohler,  9   H. 

^  Wms.  Exrs.  430.  L.    Cas.    654;    Wms.    Exis.   434,  435; 

3  Wms.  Exrs.  433,  434  ;  Dyke  v.  Wal-  Canning,    Goods   of,    28    W.    R.    278. 

ford,  5  Moore,  P.  C.  434  ;  2  Cas.  temp.  When  money  of  an  estate  has  been  paid 

Lee,  394-397.    A  similar  course  appears  to  the  solicitor  of  the  treasury  in  de- 

to  have  been   pursued  in  case  of  for-  fault  of  next  of  kin,  and  afterwards  an 

feiture  to  the  crown,  as  for  treason,  fel-  applicant  establishes  his    right  to    the 

ony,  or  /e/o  de  se.     By  Stat.   T^-i^   &  34  money  as  next  of  kin,  he  is  entitled  to 

Vict.  c.  23,  §  I,  such  forfeiture  is  abol-  the  balance,  together  with  accruing  in- 

ished ;  and  in  this  country  it  is  not  al-  terest.  Gosman,  Re,  49  L.  J.  Ch.  590, 
lowed. 

158 


CHAP.   III.]  APPOINTMENT    OP    ADMINISTRATORS.  §    Il8 

filed  with  the  register  in  the  first  instance,  whereupon  a  citation 
issues,  unless  the  petitioner,  by  the  written  assent  or  renuncia- 
tion of  all  others  equal  or  prior  in  interest,  can  show  an  undoubted 
right  to  his  immediate  appointment ;  the  citation,  made  return- 
able at  a  convenient  court  day,  serves  to  notify  all  persons  inter- 
ested of  the  proceedings  pending.  At  the  hearing  any  person 
interested  in  the  estate  may  appear  and  show  cause  for  or 
against  the  appointment  of  the  person  named  in  the  petition, 
who  should  on  his  part  be  prepared  to  show  the  facts  essential 
to  the  grant  of  letters.'  One  petitions  for  his  own  appointment 
and  cites  in  others  accordingly. 

The  English  rule  is  that  parties  contesting  the  right  to 
administration,  before  any  grant,  must  proceed  pati  passu  and 
propound  their  several  interests.^  But  probate  procedure  is 
quite  simple  in  most  parts  of  the  United  States.  The  surro- 
gate, ordinary,  or  judge  of  the  probate  or  orphans'  court,  who- 
ever exercises  jurisdiction  in  such  matters,  passes  upon  the 
petition  in  which  citation  was  issued,  and  upon  such  adverse 
petitions  besides  as  may  be  drawn  up  later  to  suit  the  occasion ; 
making  the  appointment  after  a  summary  hearing  of  all  persons 
interested.  There  is  strictly  neither  plaintiff  nor  defendant; 
but,  of  applicants,  some  may  withdraw  and  others  come  in  at 
any  time  while  the  case  is  in  progress.^  When  a  petitioner  for 
administration  withdraws  his  petition  in  the  probate  court,  he 

'  The  petition  in  American  States  is  creditor,  stranger,  public  administrator, 
drawn  up  after  a  regular  form  approved  etc.,  as  well  as  in  the  various  kinds  of 
by  the  court,  and  usually  contained  in  a  administration  to  be  considered  here- 
printed  blank.  In  an  original  petition  after.  See  Smith's  Prob.  Pract.  75. 
for  general  administration,  it  is  proper  As  to  informalities  in  the  petition 
to  set  forth  the  fact  of  the  death  of  the  considered  immaterial,  see  Abel?'.  Love, 
person  who  deceased  intestate,  the  time  17  Cal.  233;  Townsend  v.  Gordon,  19 
of  the  death,  the  place  of  last  residence,  Cal.  188.  A  petition  not  showing  on 
the  name  and  residence  of  the  spouse,  its  face  that  it  is  made  by  a  person  in- 
if  any,  and  the  names,  residences,  and  terested  as  the  statute  requires  should 
degree  of  kindred  of  his  next  of  kin.  be  dismissed.  Shipman  v.  Butterfield, 
If  the  next  of  kin  are  minors,  this  fact  47  Mich.  487. 

should  be  stated.     Other  grounds  on  ^  i  Phillim.  459 ;  Wms.  Exrs.  425. 

which  the  petitioner  bases  his  right  to  ^  Delorme  v.  Pease,  19  Ga.  220.     Ap- 

administer  should  be  alleged;  and  local  plicant  who  is  resisted,  allowed  to  open 

statutes  will  suggest  what  such  state-  and  close.     Weeks  v.  Sego,  9  Ga.  199. 

ments  should  be,  in  the  various  cases  of  Objection  to  a  grant,  on  the  ground  that 


§    Il8  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

ceases  to  be  a  party  to  the  record.'  If  contest  arises  as  to  the 
essential  facts,  such  as  pedigree,  the  case  may  be  adjourned 
from  time  to  time;  and  witnesses  are  summoned  or  a  commis- 
sion issued  to  take  depositions  as  convenience  may  require.^ 
Affidavits,  which  in  probate  proceedings  are  much  used,  precede 
the  grant  of  administration  both  in  England  and  American 
States ;  as,  for  instance,  an  oath  by  the  petitioner  to  the  essen- 
tial facts  of  death  and  intestacy  of  the  deceased,  to  the  right  or 
relationship  of  the  claimant,  the  value  of  the  estate,  or  the  proper 
service  of  the  citation.' 

As  a  prerequisite  to  the  grant  of  administration,  a  satisfactory 
bond,  in  modern  practice,  must  usually  be  furnished  by  the  per- 
son selected  for  the  trust ;  which  bond  having  been  approved 
and  filed  in  the  registry  as  the  law  directs,  letters  of  administra- 
tion issue  to  the  person  appointed,  who  may  proceed  forthwith 
in  the  execution  of  his  trust  unless  an  appeal  is  taken  from  the 
probate  court."  Administration  should  never  be  granted  by 
parol,  but  entered  as  of  judicial  record,  and  preserved  at  the 
registry  of  probate  where  the  bond  and  other  papers  relative  to 
the  case  are  kept ;  letters  duly  authenticated  under  the  seal  of 

there  are  other  kindred  preferred,  can-  qualifications  of   the  person  appointed 

not  be  taken  by  a  stranger.     Burtons,  over  the  contesting  applicant.     Uavis  <-■. 

Waples,  4  Harr.  73;  56  Ga.  146.  Swearingen,  56  Ala.  31.     As  to  the  form 

'  Miller  v.  Keith,  26  Miss.  166.  of  letters,  see  Witsel  v.  Pierce,  22  Ga. 

^  See  Ferrie  z'.  Public  Administrator,  112;  Wms.   Exrs.  452;    Smith's  Prob. 

3  Bradf.  151.  Prac.  (Mass.)  Appendix.     "Administra- 

3  See  Wms.  Exrs.  454,  as  to  the  ad-  tion  on  the  estate  of  A.  granted  to  B., 

ministrator's  oath.     And  see  Torrance  he  giving  bond,"    is    an  unconditional 

V.  McDougald,   12    Ga.  526;  Gillett  ?'.  grant  of  administration,  the  bond  being 

Needham,  37  Mich.  143.  filed  as  of  the  same  date.     Haskins  2\ 

*  Probate  bonds,  as  well  as  appeals  Miller,  2  Dev.  L.  360;  Tucker  z/.  Ilar- 

from  the  probate  court,  are  considered  ris,  13  Ga.  i.     And  see  further,  Post  ?-. 

in  c.  <■),  post.     Letters  should  usually  be  Caulk,  3  Mo.  35  ;  Davis  v.  Stevens,  10 

granted  at  the  next  term  of  the  court  La.  Ann.  496;  Pleasants  v.  Dunkin,  47 

succeeding  the  publication  of  the  cita-  Tex.  343. 

tion,  unless  the  petition  is  regularly  con-         In  cases  of  certain  officials,  such  as 

tinued.     McGhee  ?■.  Ragan,  9  Ga.  135.  public  administrator,  a  general  bond  is 

As  to  issuing  letters  in  term  time,  see  given ;  and  an  order  to  administer  will 

67  Iowa,  316.  sometimes  issue  by  way  of  a  sufficiently 

A  grant  of  administration  is  prima  valid  appointment,  though  this  mode  is 

facie  evidence  of  all  precedent  facts  es-  not  usual.     See   Thompson  f.   Bondu 

sential  to  jurisdiction;   and  the  record  rant,  15  Ala.  346;   Russell  v.  Erwin,  41 

need  not  affirmatively  show  the  superior  .Ma.  292. 

160 


CHAP.    III.]  APPOINTMENT    OF    ADMINISTRATORS. 


§    119 


the  court  being  furnished  to  the  qualified  administrator,  and 
certificates  of  the  appointment  supplied  by  the  register,  from 
time  to  time  as  occasion  may  require." 


§  119.  Administrator  as  Such  must  be  appointed ;  Credentials 
of  Authority. —  No  one  is  ex  officio  administrator  of  a  deceased 
person's  estate ;  but  the  appointment  must  in  each  case  be  made 
and  letters  issued  by  the  probate  court,  before  one  can  lawfully 
assume  the  rights  and  duties  of  the  trust.  This  general  rule 
applies  to  a  sheriff,  coroner,  police  ofificer,  or  whoever  else  may 
come  into  the  charge  and  temporary  custody  of  the  effects  of  a 
deceased  person;^  and,  subject  to  statute  quahfications  already 
noted,  the  same  holds  true  of  public  administrators.^  The 
proper  evidence  that  one  is  an  administrator  is  the  letters  of 
administration,  or  a  certified  copy  thereof,  under  the  seal  of  the 
court.''     And  the  possession  of  such  letters  by  the  person  in 

intimation  is  that  only  upon  formal  ap- 
proval of  the  bond,  whereupon  letters 
under  seal  issue,  shall  the  appointment 
take  full  effect.  The  rule  is  to  date 
decree,  bond,  and  letters  all  on  the 
same  day.  See  c.  as  to  qualifying  by 
bond ;  also  preceding  note. 

A  grant  which  includes  two  estates 
under  one  administration  is  held  not  to 
be  void.  Grande  v.  Herrera,  15  Tex. 
533.  But  such  a  grant  would  certainly 
be  thought  irregular  and  highly  objec- 
tionable in  probate  practice.  Letters 
of  administration  are  not  void  because 
the  seal  of  the  court  is  affixed  in  the 
wrong  place.     Sharpe  v.  Dye,  64  Cal.  9. 

^  Wilson  V.  Dibble,  16  Fla.  782 ;  V^^il- 
Uam.son  v.  Furbush,  31  Ark.  539. 

3  Supra,  §  117  ;  Hamilton,  Matter  of, 
34  Cal.  464;  Thomas  v.  Adams,  10  111. 

3i9-_ 

"Davis  7'.  Shuler,  14  Fla.  43S ;  Al- 
bright V.  Cobb,  30  Mich.  355 ;  Davis  v. 
Stevens,  10  La.  Ann.  496;  Tuck  v. 
Boone,  8  Gill,  187;  Moreland  v.  Law- 
rence, 23  Minn.  84. 


'  Wms.  Exrs.  452.  In  this  country, 
the  person  appointed  administrator 
sometimes  leaves  his  letters  Ipng  in  the 
registry,  having  no  occasion  to  exhibit 
them  as  credentials.  If  he  has  been 
duly  appointed  and  qualified,  however, 
the  probate  records  show  this,  and  the 
grant  of  administration  doubtless  takes 
effect  w-ithout  delivery  of  the  letters 
from  the  registry. 

If  the  law  has  prescribed  no  specific 
form  in  which  the  appointments  of  ad- 
ministrators are  to  be  made,  effect  must 
be  given  to  the  act  of  the  probate  judge 
who  signs  a  certificate  of  appointment, 
although  it  may  not  be  expressed  in  the 
usual  form  and  manner.  Carlon,  Suc- 
cession of,  26  La.  Ann.  329.  As  to 
dispensing  with  the  judge's  signature, 
_^see  85  N.  C.  258.  The  decree  of  the 
probate  court  is  often  expressed  as  ap- 
pointing the  applicant,  "  he  giving  bond 
with  sufficient  sureties,"  etc.  The  effect 
of  this  appears  to  be  that  the  signing  of 
such  decree  does  not  per  se  complete 
the  appointment ;  but  the  condition 
must  first  be  complied   with,  and   the 

u  16 


§    120  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

whose  fav'or  the  grant  runs  is  prima  facie  proof  that  they  were 
duly  granted  and  delivered." 

§  I  20.  In  V7hat  Cases  Administration  may  be  dispensed  'with. 
—  Subject  to  convenient  rules  of  limitation  as  to  time,  such  as 
we  have  already  noticed,  administration  is  always  desirable  for 
the  settlement  of  intestate  estates  not  trivial  in  amount.  Nor 
does  American  policy  so  much  dispense  with  the  judicial  formali- 
ties as  it  renders  the  judicial  procedure  simple  and  inexpensive 
so  far  as  possible.  The  custody  of  the  law  must,  in  this  in- 
stance, be  regarded  as  a  custody  for  the  benefit  of  all  parties 
interested ;  and  whether  citizen  or  stranger,  the  estate  of  every 
person  who  dies  capable  of  acquiring  and  transmitting  property 
should  be  subjected  to  this  process,  for  a  due  collection  of  ef- 
fects, settlement  and  distribution.  In  no  legal  sense  can  heir, 
next  of  kin,  or  creditor,  be  regarded  as  the  representative  of  the 
deceased  or  successor  in  title,  unless  administration  has  been 
duly  committed.''  Nor  can  one  portion  of  the  kindred  sue 
another  portion  in  matters  pertaining  to  an  intestate's  estate, 
without  the  medium  of  an  administrator  for  the  court  to  recog- 
nize.' Creditors  of  the  deceased  intestate  who  have  occasion 
to  press  their  claims  or  to  re-open  the  transactions  of  his  life; 
parties  in  interest,  too,  who  may  wish  to  collect  a  claim  or  quiet 
a  title  on  behalf  of  the  estate  ;  these  all  need  administration  as 
a  step  preliminary  to  invoking  legal  process  in  other  courts.* 
A  person  exclusively  entitled  to  the  estate  must  get  such  cre- 
dentials of  authority  before  he  can  sue  others  for  what  belongs 
to  the  estate.5  Distributees  cannot  obtain  their  distributive 
shares,  nor  ascertain  what  those  shares  should  be,  without  such 
a  representative ;  and  it  is  against  sound  policy  to  permit  an 
action  to  be  sustained  upon  any  promise  to  settle  and  pay  over 
the  distributive  shares  without   taking  out  letters."     Where,  in 

'  McNair  v.  Dodge,  7  Mo.  479.  '    Bradford     v.    Felder,    2    McCord 

^  Bartlett  v.  Hyde,  3  Mo.  490;  Alex-  (S.  C.)  Ch.    168;  Cochran  v.   Thomp- 

ander  v,  Bai-field,  6  Tex.  400.  son,  18  Tex.  652. 

3  Davidson  v.  Potts,  7  Ired.  Eq.  272!  *  Marshall    v.    King,    24    Miss.    85; 

Miller  z/.  Eatman,  11  Ala.  609.  Allen  v.  Simons,   i    Curtis,  i24;\^Sharp 

*  See  Bowdoin  v.  Holland,  10  Cush.  v.   Farmer,    2    Dev.   &   B.   122/)  There 

17.  being  no  legal  administrator,  a  creditor 

162 


CHAP.   Ill,]  APPOINTMENT    OF    ADMINISTRATORS. 


S    120 


fact,  the  next  of  kin  and  heirs-at-law  have  taken  possession  of 
the  estate  of  a  deceased  person  and  held  it  for  many  years, 
dividing  it  and  exercising  other  acts  of  ownership,  they  may 
nevertheless  be  held  accountable  for  the  whole  property  to  an 
administrator  regularly  appointed  afterwards;  and  a  court  of 
equity  will  not,  at  their  instance,  restrain  him  from  recovering 
the  assets  in  an  action  at  law." 

There  are,  however,  as  we  have  observed,  statute  limitations 
to  the  grant  of  original  administration  ;  the  bounds  set  being,  on 
sound  principle,  those  usually  fixed  for  quieting  titles  and  check- 
ing litigation.-  So  there  may  be  limitations  of  value,  lest  tri- 
fling estates  be  frittered  away  in  the  course  of  a  needless  settle- 
ment.^    Moreover,  it  is  held  competent  for  all  the  heirs  and 


of  the  intestate  cannot  ask  a  court  of 
equity  to  appoint  a  receiver  to  adminis- 
ter.    Walker  v.  Drew,  20  Fla.  908. 

'  Whit  V.  Ray,  4  Ired.  14 ;  Carter  v\ 
Greenwood,  5  Jones  Eq.  410;  Echols 
V.  Barrett,  6  Geo.  443  ;""Eisenbise  v. 
Eisenbise,  4  Watts,  134.  And  see 
Weeks  v.  Jewett,  45  N.  H.  540;  Wil- 
kinson V.  Perrin,  7  Monr.  217. 

Rarely,  if  ever,  can  exception  be  as- 
serted at  this  day  because  of  incapacity 
in  the  intestate.  American  law  recog- 
nizes neither  slaves  nor  outlaws ;  but  all 
may  acquire  and  transmit  title  to  per- 
sonal property.  As  to  free  persons  of 
color,  see  Scranton  v.  Demere,  6  Ga. 
92.  But  as  to  a  deceased  Indian  not 
taxed,  see  Dole  v.  Irish,  2  Barb.  639. 
An  infant  may  die  entitled  to  property 
in  his  own  right,  so  that  administration 
of  the  estate  becomes  requisite.  Miller 
V.  Eastman,  1 1  Ala.  609 ;  Wheeler  v. 
St.  Joseph  R.,  31  Kan.  640.  Cf.  Cobbz'. 
Brown,  Speer's  Eq.  564  ;  1 50  Mass.  234. 
And  although  the  status  of  the  wife  at 
common  law  forbade  her  to  acquire 
personal  property  in  her  own  right,  and 
the  husband  has  been  said  to  adminis- 
ter for  his  own  benefit,  if  he  administers 
at  all,  the  modern  tendency  is  to  require 
administration  in  all  cases  where  a  mar- 
ried woman   having  a  separate   estate 

163 


dies  intestate.  Schoul.  Hus.  &  Wife, 
§§  408,  409 ;  Holmes  v.  Holmes,  28  Vt. 
765  jlPatterson  v.  High,  8  Ired.  Eq.  52  ; 
supra,  §  98.J  But  some  States,  even 
where  no  real  necessity  exists  for  ad- 
ministration upon  a  wife's  estate,  require 
instead  an  order  of  the  court  to  devolve 
legal  title  upon  the  husband.  Wilkinson 
V.  Robertson,  85  Md.  447. 

^  Supra,  §  94.  Cf.  Foster  v.  Com- 
monwealth, 35  Penn.  St.  148;  Pinney 
V.  McGregory,  102  Mass.  89.  Twenty 
years  is  the  Massachusetts  limit.  lb. 
After  a  long  adverse  possession  of  per- 
sonalty, equity  will  presume  a  former 
administration,  to  protect  the  rights  of 
bona  fide  purchasers.  Woodfolk  v. 
Beatly,  18  Ga.  520. 

^  Estates  less  than  twenty  dollars 
need  not,  in  Maine,  be  administered 
upon.  Bean  v.  Bumpus,  22  Me.  549. 
In  Massachusetts  no  such  general  limit 
of  value  is  placed;  Pinney  ».  McGregor, 
102  Mass.  89;  but  public  administrators 
are  empowered  to  collect  and  pay  over  to 
the  State  treasurer  without  taking  out 
letters  for  estates  so  small.  Pub.  Stats. 
Mass.  c.  131,  §  18.  In  Indiana,  estates 
worth  less  than  ^300  are  to  be  invento- 
ried, appraised,  and  settled  without  an 
administrator.  Pace  v.  Oppenheim,  12 
Ind.  s  ;^.      .'Should  an  estate  turn  out  to 


§    I  JO  KXECUTOKS    AND    ADMINISTRATORS.  [PART   II. 

kindred  of  a  deceased  person,  if  they  be  of  age,  to  settle  and 
pay  the  debts  of  the  estate,  and  divide  the  property  fairly  amoni; 
themselves,  without  the  intervention  of  an  administrator  ;  for 
in  such  a  case  the  rights  of  no  one  are  prejudiced.'  Such  set- 
tlement and  division  would  not,  however,  be  in  strict  compliance 
with  the  law,  and,  if  made  unfairly,  or  in  disregard  of  the  rights 
of  some  party  in  interest,  it  might  be  avoided  afterwards  through 
the  intervention  of  a  legal  administrator.-  Other  instances  are 
found  where  courts  disincline  to  appoint  an  administrator  un- 
necessaril)',  or  to  permit  one  already  appointed  to  overthrow 
the  reasonable  transactions  of  distributees  with  reference  to  the 
estate,  for  the  mere  sake  of  asserting  his  own  lawful  authority.^ 
Administration  is  granted  on  an  estate  because  there  is  some  oc- 
casion for  such  a  grant  ;  and  where  there  is  no  occasion,  no  sub- 
stantial object  to  be  gained  by  the  issue  of  letters,  the  grant 
should  be  withheld. •• 

Statutes  specially  dispense  with  letters  of  administration  in 
various  instances  ;  and  particularly  where  the  balance  of  jxiy 
due  some  public  servant  is  to  be  settled  by  government,  or  the 
bounties,  prize-money,  or  pensions  of  soldiers  and  sailors  remain 
to  be  adjusted.  For  the  public  interest  is  often  thought  to  be 
best   subser\ed  in  such   cases  by  dealing  directly  witli  widows, 

be  of  the  full  statute  value,  letters  ought  by  the  widow  and   kindred,  where  he 

afterwards  to  be  procured.  could  not  show  debts  or  any  good  cause 

'  Taylor  7'.  Phillips,  30  Vt.  238;  Bab-  for    re-opening    the  transaction.     Wal- 

bil  7'.  Brown,  32  Vt.  437  ;  Henderson  7'.  worth  7-.  Abel,  52  Penn.  St.  370.     For 

Clarke,  27  Miss.  436  ;  Needham  v.  Gil-  an  administrator  can  proceed  both  pru- 

lett,  39  Mich.  574.     Under  the  peculiar  dently  and  with  delicacy  by  charging  off 

practice   of    Louisiana,    this    course  is  the  proceeds  to  the  shares  of  widow  and 

sometimes  followed.     29  La.  Ann.  347  ;  kindred  in  his  accounts. 

Welch's  Succession,  36  La.  Ann.  702.  ■*  Ciraves's   Succes.sion,   50  La.    Ann. 

2  Hibbard  v.   Kent,    15    N.   H.    516;  435;  82    Md.  383.     It  does  not  follow 

Clarke  v.  Clay,  31  N.  IL  393.  that  because  another  party  is  in  posses- 

^  Thus,  in  Alabama,  a  court  of  equity  sion  of  a  decea.sed  person's  chattels  he 
may  decree  distribution  direct,  when  should  be  made  to  surrender  them,  re- 
administration,  if  granted,  could  be  for  gardless  of  a  necessity  of  settling  debts, 
no  other  ))urpose.  P>etwell  v.  Mc-  or  making  just  distribution.  People  v. 
Lemore,  52  Ala.  124.  See  akso  94  Ala.  Abbott,  105  111.  588;  P'ort  v.  Fitts,  66 
479;  45  S.  C  17.  And,  in  Pennsyl-  Tex.  593.  Partial  intestacy  under  a 
vania,  an  administrator  was  not  per-  will  affords  no  occasion ''or  granting  ad- 
mitted to  disturb  a  sale  of  personal  ministration.  See  §  250. 
property  made  before  his  appointment 

164 


CHAP.    III.]  APPOINTMENT    OF    ADMINISTRATORS.  ^    1 20 

orphans,  and  other  next  of  kin,  through  the  Executive ;  to  the 
utter  exclusion,  if  need  be,  of  the  intestate's  creditors,  and  the 
avoidance  of  controversies  in  probate  court  over  the  locus  of  as- 
sets or  of  the  decedent's  last  domicile.' 

'  For  English  statutes  concerning  ad-     navy  acts  make  frequent  provisions  for 
ministration  of  the  effects  of  intestate     a   peculiar  distribution   and  settlement 
seamen,  marines,  and  soldiers,  see  Wms.     through  the  auditors  of  the  treasury. 
Exrs.  455-460.    United  States  armv  and 

165 


§    122  executors'  AND    AUiMlIslSTRATOKS.  [PAKTIL 


CHAPTER  IV. 

APPOINTMENT     OF      ADMINISTRATORS     NOT      ORIGINAL     AND 

GENERAL. 

§12  1.  Administration  is  not  al'ways  Original  or  General. — 
Since  administration  in  our  law  fulfils  every  purpose  of  settling- 
estates  where  no  executor  serves,  it  follows  that  the  grant  can- 
not always  be  both  original  and  general,  as  considered  in  the 
preceding  chapter.  On  the  contrary,  there  remain  several  kinds 
of  administration,  all  of  a  special  and  limited  nature,  to  be  stated, 
and  all  fully  recognized  in  probate  practice,  English  and  Amer- 
ican. These  may  be  enumerated  in  order,  as  chiefly:  (i)  ad- 
ministration with  the  will  annexed  {cum  tcstanicnto  anjicxo)  ; 
(2)  administration  of  personalty  not  already  administered  {de 
bonis  non)  ;  (3)  temporary  administration,  as  for  instance,  during 
minority  {durante  minorc  estate)  ;  (4)  and  special  administration 
for  limited  and  special  purposes  {ad  colligcndnm,  etc.).  The 
Latin  idiom  admits  of  othef  names  and  classes  ;  not  to  speak  of 
ancillary  administration,  whose  discussion  belongs  to  a  later 
chapter,  as  contrasted  with  the  principal  or  domiciliary  adminis- 
tration. 

§  122.  Administration  ■with  the  Will  annexed  (cum  testamento 
annexo)  ;  When  granted  and  how. —  In  \arious  instances  adniin- 
istration  should  be  granted  of  testate  estates  ;  as  where  the  de- 
cedent omitted  in  his  will  to  name  an  executor,  or  where  the 
executor  or  executors  named  are  all  found  dead  or  incompetent 
to  act  when  the  will  is  to  be  presented  for  probate,  or  where  the 
executor  refuses  the  trust,  or  has  disappeared,  or  neglects  to 
appear  and  qualify  as  the  statute  directs.  Here  the  court  must 
grant  an  administration,  while  giving  the  will  its  due  operation 

166 


CHAP.   IV.  j  APPOINTMENT    OK    ADMINISTRATORS.  §    1 23 

as  far  as  possible,  and  admitting  it  to  probate  ;  and  this  sort  of 
grant  is  known  as  administration  with  the  will  annexed." 

The  will  should,  of  course,  be  presented  for  probate,  even 
though  there  be  no  executor  to  serve  under  it ;  and,  in  default 
of  an  executor,  the  person  applying  to  be  appointed  administra- 
tor with, the  will  anne.xed  takes  usually  the  burden  of  probate, 
petitioning  after  the  same  form  as  an  executor,  but  alleging  the 
special  circumstances,  besides,  under  which  he  claims  the  ap- 
pointment. Letters  of  administration  with  the  will  annexed 
should  not  be  granted  unless  the  exigency  is  made  apparent  ; 
executors,  if  alive  and  competent,  should  have  full  opportunity 
to  take  or  renounce  the  trust  ;  any  renunciation  on  their  part 
should  be  made  in  proper  form  ;  and  if,  out  of  several  executors 
named,  one  is  willing  and  competent  to  serve,  such  administra- 
tion is  not  to  be  granted.-  When  granted  upon  proof  of  the 
will  in  common  form,  such  administrator  may  be  called  upon, 
like  any  executor,  to  prove  the  will  afterwards  in  solemn  form  ; 
and  renunciation  of  this  trust  in  one's  favor  is  not  necessarily 
renunciation  of  the  right  to  contest  probate.^  Pending  an  ap- 
peal from  probate  of  the  will,  a  petition  for  such  administration 
cannot  be  allowed.'' 

§  123.  Administration  Tvith  the  Will  annexed;  Functions  of 
the  Office.  —  The  functions  of  administrator  with  the  will  an- 
nexed are,  in  general,  those  of  executor ;  for  the  probate  court 
makes  him  pilot  by  substitution,  to  steer  like  an  executor  by  the 

'  See  2  Inst.;  Mass.  Gen.  Stats,  c.  94,  nexed  can   be    granted,     i    Roll.   Abr. 

§§6,   7;  Wms.   Exrs.  461;    Peebles  v.  907,  pi.  6.     But  as  to  Mississippi  prac- 

Watt.s,  9  Dana  (Ky.)  102  ;  Vick  z/.  Vicks-  tice,  when  the  executor  named  was  a 

burg,  2  Miss.  379  ;  Tuttle  v.  Turner,  8  non-resident  and  did  not  seasonably  o]> 

Jones  L.  403 ;  Crawshay's  Goods,  (1893)  J^c'^  ^'^  such  a  grant,  see  Cox  v.  Cox,  16 

P.  108.  Miss.    292.      Where   an    executor   was 

For  a  Umited  grant  of  administration  bodily   incapacitated  by  illness,  letters 

under  a  %\ill,  see  Butler's  Goods,  (1898)  with  the  will  annexed  were  granted  to  a 

P.  9.  residuaiy  legatee  for  the  use  of  the  ex- 

^  Wms.  Exrs.  281,  283,  461  ;  Stebbins  ecutor  until  his  recovery.     Ponsonby's 

V.  Lathrop,  4  Pick.  33;  Maxwell,  Re,  3  Goods,  (1895)  P.  287.     And  see  §  134. 

N.  J.  Eq.  611  ;  mpra,  §44;  Springs  v.  ^Wms.  Exrs.  337;  2  Cas.  temp.  Lee, 

Irwin,  6  Ired.  L.  27.     If  there  are  sev-  241. 

eral  executors,  all  must  duly  renounce  ■'Fisher,  Re,  15  Wis.  511. 
before  administration  with  the  will  an- 

167 


§    124  EXECUTORS    AND    ADMINISTRATORS.  [PAKT   II. 

chart  which  the  deceased  has  left  behind.  His  letters  are 
worded  to  fit  the  case ;  but  he  qualifies  substantially  as  an  ad- 
ministrator.' A  will  is  not  vitiated  by  the  failure  of  executors, 
to  carry  out  its  provisions  ;  and  the  full  appointment  of  an  ad- 
ministrator with  the  will  annexed  assumes,  though  not  perhaps 
conclusively,  that  the  court  has  in  point  of  fact,  admitted  the 
will  to  probate.^ 

§  I  24.  Administration  with  the  Will  annexed  ;  to  whom  granted  ; 
Residuary  Legatee.  —  The  rule,  when  uncontrolled  by  statute,  is 
to  grant  administration  with  the  will  annexed  to  the  claimant 
having  the  greatest  interest  under  the  will,  for  which  reason  the 
residuary  legatee  is  preferred  to  mere  next  of  kin.  And  stat- 
ute 21,  Hen.  Vni.  has  accordingly  been  construed,  in  English 
courts,  as  admitting  of  such  an  exception  to  the  rule  of  admin- 
istration, forasmuch  as  that  statute  conforms,  in  its  spirit,  to  the 
presumed  last  wishes  of  the  deceased. ^  Of  two  or  more  residu- 
ary legatees,  any  of  them  may  be  taken  as  the  court  may  see 
fit  to  select.'*  And  though  the  estate  be  such  that  the  residu- 
ary legatee  is  not  likely  to  have  a  residue,  or  by  the  terms  of 
the  will  must  hold  that  residue  with  limitations,  the  presumption 
of  the  testator's  favor  upholds  his  claim,  nevertheless,  to  be  ap- 
pointed.5  He  is  preferred,  not  only  to  next  of  kin,  but  to  all 
other  legatees  under  the  will  besides  ;  and  if  he  die  after  the 
testator,  and  before  obtaining  letters,  his  personal  representative 

'  Wms.  Exrs.  470;   next  c.  By  the  bet-  to  be  made.     5    Dem.  (N.  Y.)  128;  4 

ter  practice,  the  judicial  record  should  Dem.    168.     The   testator's   expressed 

show  that  there  was  cause  for  granting  wish  as  between  two    persons    having 

such  administration.     But  see  Peebles  equal  rights  is  entitled  to  some  weight. 

V.  Watts,  9  Dana,  202.     See  also  Gies-  5  Dem.  (N.   Y.)  281.     Under  the  New 

sen  V.  Bridgford,  83  N.  Y.  348.  York  statute,  such  letters  must  be  issued 

^Lackland  v.  Stevenson,  54  Mo.  108.  to  the  guardian  of  any  infant  who,  but 

^i    Ventr.    219,  per   curiam:   Wms.  for  his    infancy,  would  be   entitled  to 

Exrs.   463,  464  ;  Atkinson  v.    Barnard,  them.     4  Dem.  297. 
2  Phillim.  318.  5  Hutchinson  v.  Lambert,  3  Add.  27  ; 

••  Taylor  z/.  Shore,  2  Jones,  162.     See  Atkinson    ?'.   Barnard,  2    Phillim.  316; 

Wms.  Exrs.  467.     All  who  are  immedi-  Mallory's  Appeal,  62  Conn.  218  (adminis- 

ately  and   ultimately  interested  in  the  U3.\.\ov\  Jc  donis  iiou).     But  where  one  is 

fund  created  by  the  will  may  be  classed  made  a  mere  trustee  of  the  re.sidue  it  is 

together  as  "  principal  or  specified  lega-  other^vise.      2  Cas.  temp.  Lee,  243,  294, 

tees,"  from  whom  the  statute  choice  is  327  ;  Ditchfield,  Goods  of,  L.   R.  2   P. 

168 


CHAT.    IV. J  APPOINTMENT    OF    ADMINISTRATORS.  §    126 

takes  precedence  in  his  right  to  the  fullest  extent."  If  one  is 
not  only  sole  residuary  legatee  but  sole  beneficiary  under  the 
will,  still  stronger  becomes  his  claim  for  appointment  where  an 
executor  is  wanting.^ 

v^  I  2  5 .  Administration  with  the  Will  annexed  ;  Appointment  of 
Next  of  Kin. —  So  far,  however,  from  having  any  legal  right  to 
the  grant  of  such  letters,  the  residuary  legatee  could  not  com- 
pel the  selection  of  himself  by  mandamus  ;  and  the  English 
spiritual  court  thus  proceeded  at  its  own  discretion.^  But  if  the 
residuary  legatee  was  also  next  of  kin  (saving  the  rights  of  hus- 
band or  widow  surviving)  practice  and  statute  united  in  his  favor, 
and  the  court  could  not  pass  him  over.''  Upon  the  refusal  or 
inability  of  the  residuary  legatee  to  fill  the  vacancy  under  the 
will,  administration  with  the  will  annexed  has  been  granted 
most  commonly  to  the  next  of  kin  ;  though  the  English  prac- 
tice is  to  refuse  such  administration  where  the  next  of  kin  takes 
under  the  will  no  beneficial  interest. ^  Administration  may  be 
granted  to  next  of  kin  where  the  will  contains  no  clear  disposi- 
tion of  the  residue.''  Where  residuary  estate  is  held  in  trust, 
the  beneficiary  of  the  trust  should  be  preferred  to  the  trustee.^ 

§  1 26.  Administration  •w^ith  the  Will  annexed ;  Surviving 
Spouse's  Right  considered.  —  Where  a  wife  makes  a  lawful  will, 
but  appoints  no  executor,  or  names  one  without  any  right  to  do 
so,  her  surviving  husband's  right  has  been  variously  construed  ; 

&  D.  152.     Where  a  residuary  legacy  liffe's  Goods,  (1895)  P-  ^9°'  ^  convent 

is  given  to  a  trustee  to  be  paid  over,  the  was  residuary  legatee,  and  letters  were 

cestui  que  trust,  not  the  trustee,  should  granted  to  the  Mother  Superior, 

be  appointed.     Thompson's  Estate,  33  ^Crawshay's  Goods,  (1893)    P-    '°^- 

Barb.  334.  And  see    Campion's   Goods,  (1900)   P. 

'  Wms.  Exrs.  464,  465  ;  Jones  v.  Bey-  13,  (grant  to  assignees  of  the  residuary 

tagh,  3  Phillim.  635  ;  Wetdrill^'.  Wright,  legatee). 

2   Phillim.    243 ;  6    Notes  of   Gas.  44 ;  '2  Stra.  956  ;  Wms.  Exrs.  465. 

Booraem's    Estate,  55   N.  J.  Eq.    459.  ''Gas.  temp.  Lee,  414. 

Aliter,  as  suggested  above,  where  the  '  Wms.    Exrs.     466 ;    Kooystra     v. 

so-called    residuary   legatee  is    a  mere  Buyskes,  3  Phillim.  531. 

trustee  under  the  will.     Hutchinson  7'.  *  Aston,  Goods  of,  L.  R.  6  P.  D.  203. 

Lambert,  3  Add.  27;  Ditchfield,  Goods  '5  Dem.  (N.  V.)  523.     The   next  of 

of,    L.  R.  2    P.  &    D.    152.     In   M'Au-  kin  has  a  preference  over  any  creditor. 

169 


§    12/  EXECUTORS    AND    ADMINISTRATORS.  [PART   11. 

but  it  would  appear  that  the  grant  of  letters  is  discretionary  in 
the  court  according  to  the  circumstances.  One  of  these  cir- 
cumstances is  the  lawful  interest  acquired  under  such  a  will  ; 
another,  whether,  apart  from  such  interest,  the  wife  had  a  right 
to  constitute  any  executor  other  than  her  husband.'  As  to  the 
wife's  partial  disposition  rightfully  made,  the  rule  appears  to  be 
to  respect  her  wishes,  or  those  of  the  parties  in  interest,  and  to 
grant  an  administration  with  the  will  annexed  accordingly,  where 
there  can  be  no  executor  ;  but  limiting  the  grant  thus,  to  decree 
an  administration  cceteroruni  bonoriini  to  her  husband.^  On  the 
whole,  the  husband's  right  to  administer  is  favored  in  England 
and  the  United  States,  save  so  far  as  the  wife  may  have  lawfully 
controlled  it  by  her  own  testamentary  disposition.^ 

What  has  been  said  of  the  widow's  general  right  to  adminis- 
ter on  the  estate  of  her  deceased  husband  may  suffice  for  estab- 
lishing her  precedence  over  the  next  of  kin,  or  statute  equaUty 
with  them,  wherever  occasion  arises  for  granting  administration 
with  the  will  annexed,  of  such  estate. ■♦  Where  under  the  will 
the  largest  or  the  residuary  beneficiary  is  the  surviving  spouse, 
all  the  greater  becomes  the  right  to  be  appointed. 5 

§  127.  Administration  with  the  Will  annexed;  Executor's 
Rights. —  If  there  be  an  executor  living  and  competent,  his  para- 
mount rights  must  be  respected.     And  any  order  of  court  which 

Little  V.  Berry,  94  N.  C.  433.  The  case  tatrix  long  before  her  death  and  had 
of  a  non-resident  testator  who  leaves  not  since  been  heard  from.  (1894)?.  23. 
local  property  is  not  within  the  statute.  '■Supra,  §  99.  Semble,  by  English 
49  Conn.  411.  A  claimant  under  a  practice,  that,  following  the  intent  of 
contract  with  executoris  not  a  "  creditor"  the  will,  administration  "  during  widow- 
in  the  statute  sense,  i  Dem.  (N.  Y.)  hood "  may  be  the  proper  limitation. 
240.  Wms.   Exrs.  463,  n. ;  7   Notes  of  Cas. 

'  Ur.     Lushington   in     Brenchley   t.  6S4. 

Lynd,  2  Robert.  441  ;  Bailey,  Goods  of,  'See  Long  t.   liuggin.s,  72   Ga.  776. 

2   Sw.  &  Tr.    135;  Salmon  ?'.   Hays,  4  Where    hu.sband  and  wife  executed 

Hagg.  386.  corresponding    wills,    each    appointing 

'2  Cas.  temp.  Lee,  537.  the  other  universal  legatee  and  .sole  ex- 

5  Wms.  Exrs.  415,  416;  Schoul.  IIus.  ecutor,  and  both  perished  together  in  a 

&    W^ife,    §§    457-470,  passim;    supra,  shipwreck,  with  no  evidence  that  either 

§98;  Schoul.  Wills,  Part  II.,  c.  3.  Son  of  them  survived  the  other,  administra- 

appointed   as    trustee   for    beneficiaries  tion  with  the  will  annexed  of  the  estate 

where  the  husband  had  deserted  the  te'^  of  each  was  granted  to  next  of  kin  as 

170 


CHAP.    IV.]  APPOINTMENT    OF    ADMINISTRATORS.  §    128 

grants  administration  with  the  will  annexed  to  another  before 
the  executor  has  formally  renounced  the  trust  is  voidable  upon 
his  application  made  in  due  time.'  Logically  speaking,  an  ex- 
ecutor ought  not  to  be  allowed  to  take  out  administration  with 
the  will  annexed  ;  -  but  there  are  cases  in  which  an  individual 
may  be  considered  entitled  to  such  grant,  after  renouncing  the 
claim  of  executor.  Thus,  it  is  held  in  Missouri  that  an  executor, 
whose  appointment  as  such  was  avoided  by  his  being  an  attest- 
ing witness,  may  nevertheless  be  appointed  administrator  with 
the  will  annexed. 3  In  England,  recently,  a  similar  grant  was 
made  to  a  husband  who  was  made  sole  executor  and  universal 
legatee  under  his  wife's  will,  and  who,  after  having  renounced 
in  the  probate,  desired  afterwards  to  prove  the  will.-*  And  a 
widow  appointed  sole  executrix  has  been  permitted  to  decline 
that  responsible  trust,  and  afterwards  serve  as  administratrix 
with  the  will  annexed,  in  connection  with  another  administrator.' 
When  an  executor  resides  abroad,  rules  of  non-residence  ap- 
ply, such  as  we  have  already  considered  ;  non-residence  does  not 
essentially  disqualify,  but  in  English  practice  the  executor,  by  a 
power  of  attorney  revocable  at  pleasure,  may  have  another  ap- 
pointed administrator  with  the  will  annexed.^ 

§   128.      Administration    of    Personalty    not    already    adminis- 
tered (de  bonis  non) ;  when  granted,  etc.  —  The  general  principle 

incase  of  intestacy.     Alston's   Goods,  annexed.     See  Stat.  20  &  21  Vict.  c.  77, 

(1892)  P.  142.  §  79,  to  the  effect  that  where  one  re- 

'  Baldwin    v.    Buford,    4    Yerg.    16;  nounces  probate  his  right  in  respect  of 

Thompson  v.  Meek,  7  Leigh,  419.    But  the  executorship  shall  wholly  cease,  and 

the  executor  cannot  formally  renounce,  administration  be  committed  as  if  he 

and  claim  his  right  after  administration  had  not  been  appointed, 

with  the  will  annexed  has  been  granted.  '  Briscoe  v.  Wickliffe,  6  Dana,  1 57. 

Wms.  Exrs.  284  ;  Add.  273.  ^  Supra  §  109  ;  i  Cas.  temp.  Lee,  402  ; 

^  Wms.    Exrs.     470,     citing    English  Bayard,  Goods  of,  i  Robert.  768  ;  Wms. 

rules  of  court,  which  preclude  a  person  Exrs.    468.      Administration  with   will 

entitled  to  a  grant  in  a  superior  charac-  annexed  may  be  granted  to  the  attor- 

ter  from  taking  it  in  an  inferior.  ney  of  the   foreign    executor  in  some 

'  Murphy  v.  Murphy,  24  Mo.  526.  States.      St.    Jurgo   v.    Dunscomb,    2 

■•  Bhsset,    Goods    of,    44    L.   T.  816.  Bradf.  (N.  Y.)  105.    Or  the  non-resident 

Having  renounced  probate  in  his  capac-  executor  empowers  a  resident  attorney 

ity  of  executor,  his  interest,  neverthe-  to  accept  service  of  process,  etc.    Mass. 

less,  as  universal  legatee,  supported  the  Pub.  Stats,  c.  132. 
grant    of  admini.stration  with  the  will 

171 


§    128  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

of  administration  dc  bonis  nou  is  that  this  grant  shall  be  made 
where  a  vacancy  must  be  filled  by  the  court  while  the  estate  re- 
mains incompletely  settled.  Hence  the  grant  is  made  under 
either  of  two  aspects  :  (i)  where  there  was  a  will,  or  (2)  where 
there  was  no  will.  In  the  former  instance  letters  testamentary, 
as  we  have  seen,  hold  good  so  long  as  one  of  two  or  more  execu- 
tors survives  to  fulfil  the  trust,  and  holds  his  office ;  and  where,  on 
the  other  hand,  there  was  no  executor  at  the  time  of  probate, 
the  original  appointment  becomes  that  of  administrator  with  the 
will  annexed.  In  the  latter  instance  the  vacancy  created  is  that 
of  sole  original  administrator.  Failing  the  original  office,  there- 
fore, under  a  will,  administration  dc  bonis  non  with  the  will  an- 
nexed is  proper  ;  but  failing  the  original  office,  where  there  was 
no  will,  administration  dc  bonis  non  simply.  In  modern  prac- 
tice, to  render  any  grant  dc  bonis  non  valid,  the  original  office 
must  be  vacant  at  the  time  by  the  death,  resignation,  or  removal 
of  the  sole  executor  or  original  administrator." 

Where  the  sole  executor,  whose  functions  cease,  has  not  com- 
pleted the  administration  of  the  estate,  where  he  has  not  paid 
all  the  legacies,  satisfied  all  the  lawful  claims,  and  delivered  over 
the  balance  in  his  hands  to  the  persons  entitled  thereto,  an  ad- 
ministrator dc  bonis  non  with  the  will  annexed  may  be  rightfully 
appointed.'  And  the  Massachusetts  statute  is  quite  explicit 
in  declaring  that  when  a  sole  executor  or  administrator  with  the 
will  annexed  dies  after  entering  upon  the  duties  of  his  trust  and 
before  it  is  discharged,  or  is  removed  by  the  court  or  resigns, 
administration  dc  bonis  non  with  the  will  annexed  may  be 
granted  ;'  there  being,  of  course,  occasion  for  the  appointment, 
such  as  unsettled  debts  or  unadministered  estate,  and  something 

■  See  Ramlx)  r-.  Wyatt,  32  Ala.  363  ;  of  coverture.  Supra,  §  32  ;  Schoul. 
Wms.  Exrs.  7th  ed.  471  ;  Crealh  v.  IIus.  &  Wife,  §§  163,  460. 
Brent,  3  Dana,  129.  Under  Massachu-  ^  Alexander  v.  Stewart,  8  Gill  &  J. 
setts  statutes,  administration  de  bonis  226;  Brattle  7a  Converse,  i  Root  (Conn.) 
7wn  (with  or  without  the  will  annexed,  174.  The  old  common  law  rule  may 
as  the  case  may  be)  is  proper  whenever  have  stopped  somewhat  short  of  this 
an  unmarried  woman,  being  sole  execu-  conclusion,  but  according  to  the  tenor 
tor  or  administrator,  marries;  the  trust  of  modern  legislation  the  rule  is  sub- 
terminating  accordingly,  instead  of  vest-  stantially  that  stated  above.  Chamber- 
ing in  her  husband,  as  under  thecjlcllaw     lin,  Ke,  70  Conn.  363. 

'  Mass.  Cen.  Stats,  c.  loi,  §  i. 
172 


CHAP.   IV.]  APPOINTMENT    OF    ADMINISTRATORS. 


§    I-^S 


remaining  to  be  performed  in  execution  of  the  will.  English 
practice  regards,  by  way  of  exception,  the  right  of  a  sole  executor 
to  transmit  the  office  to  his  own  executor  ; '  but  that  distinction, 
we  have  seen,  is  not  upheld  in  most  of  the  United  States. - 

So,  correspondingly,  is  it  with  the  administration  of  an  intes- 
tate estate.  If  a  sole  administrator  dies  before  completing  the 
trust  committed  to  him,  or  is  removed  by  the  court  or  re- 
signs, administration  dc  bonis  non  will  be  granted,  provided 
there  is  personal  property  left  unadministered  or  debts  remain- 
ing due  from  the  estate.^  As  with  co-executors,  however,  so  in 
joint  administration,  the  survivor  becomes  sole  administrator, 
and  the  original  office  does  not  lapse  so  long  as  one  remains  to 


'^  Supra,  §43;  Wms.  Exrs.  471-473. 
See  Grant,  Goods  of,  24  W.  R.  929 ; 
(1896)  P.  129.  Such  a  rule  involves  a 
very  nice  inquiry  as  to  the  necessity  of 
administration  de  bonis  non  when  there 
is  an  administration  durante  tninoritate 
of  an  executor  of  an  executor.  Wms. 
Exrs.  473. 

^  Stipra,  §  43 ;  I  Dem.  (N.  Y.)  353. 
But  see  Hart  v.  Smith,  20  Fla.  58. 
That  rule  cannot,  at  all  events,  apply 
when  the  testator  named  the  successor 
by  his  will.     See  §  40. 

3  Mass.  Gen.  Stats,  c.  101,  §  i  ;  2  Bl. 
Com.  506;  Scott  V.  Fox,  14  Md.  388; 
Hendricks  v.  Snodgrass,  i  Miss.  86 ; 
Wms.  Exrs.  474.  "  Debt  "  construed 
not  to  include  "  legacy."  Chapin  t. 
Hastings,  2  Pick.  361. 

Statute  restrictions  are  imposed,  how- 
ever, on  this  grant.  In  Massachusetts  un- 
administered estate  or  unsettled  debts, 
upon  the  lapse  of  sole  executorship  or 
sole  administratorship,  must  be  left  to 
the  amount  of  at  least  twenty  dollars. 
Mass.  Gen.  Stats,  c.  loi,  §  i.  This  is 
for  the  purpose  evidently  of  checking 
litigious  proceedings,  and  dispensing 
with  multiplied  offices  for  trifling  es- 
tates. Administration  de  bonis  tion  is 
often  granted  with  the  view  of  over- 
hauling the  acts  and  conduct  of  some 

I 


predecessor,  and  making  him,  his  bonds- 
men, and  his  personal  representatives 
answerable  to  dissatisfied  parties  in  in- 
terest. If  the  tnist  has  been  essentially 
fulfilled  under  the  original  grant,  it  is 
thought  better  to  suffer  the  administra- 
tion to  expire. 

Notwithstanding  statute  limitations 
concerning  original  administration,  it  is 
held  that  administration  de  bonis  non 
may  be  granted  after  the  lapse  of  twenty 
years  from  the  death  of  the  former  ad- 
ministrator. Bancroft  r-.  Andrews,  6 
Cush.  493  ;  Holmes,  In  re,  33  Me.  577. 
But  long  lapse  of  time  and  other  cir- 
cumstances favor  a  presumption  that 
the  estate  has  been  fully  settled.  Mur- 
phy V.  Menard,  14  Tex.  62.  And  see 
San  Roman  v.  Watson,  54  Tex.  254. 
But  the  question  is  not  merely  whether 
debts  remain  unpaid,  but  whether  the 
estate  has  been  wholly  settled  and  the 
trust  closed.  Protection  of  the  rights 
of  distributees  may  give  occasion  for 
the  appointment  ;  as  where  the  final 
settlement  of  a  deceased  administrator 
is  set  aside  by  the  courts.  Scott  v. 
Crews,  72  Mo.  261  ;  Byerly  v.  Donlin, 
72  Mo.  270.  And  see  Neal  v.  Charlton, 
52  Md.  495.  Local  statute  may  some- 
what affect  the  consideration.  70  Conn. 
363. 

73 


§    128  EXECUTORS    AND    ADMINISTRATORS.  [['ART   II. 

fill  it.'  The  goods  of  an  intestate  do  not  go  to  the  legal  repre- 
sentative of  a  deceased  administrator,  nor  has  such  representa- 
tive any  preferred  right  to  the  successorship.-  The  administra- 
tor de  bonis  no?i  "  is  appointed,"  it  has  been  said,  to  "  finish  a 
business  already  commenced  ;  and  this  makes  the  ease  different 
from  that  of  a  full  and  immediate  administrator,  whether  tempo- 
rary or  other\vise,  since  the  present  one  is  entitled  to  all  the 
personalty  which  the  former  executor  or  administrator  has  not 
converted."^ 

It  is  held  that  where,  in  consequence  of  the  death  of  a  quali- 
fied executor  pending  proceedings  to  test  the  validity  of  the 
will,  there  is  no  legal  representative  of  an  estate,  the  probate 
court  may  grant  letters  of  administration  de  bonis  non,  even 
while  an  appeal  from  that  cause  is  pending.'*  But  it  would  have 
been  better  to  defer  such  grant,  and  as  a  general  rule,  there 
cannot  be  two  valid  grants  of  administration  subsisting  at  the 
same  time  in  one  jurisdiction  upon  one  estate;  but  wherever 
there  is  an  executor  or  administrator  still  in  office,  with  powers 
not  limited  as  to  objects  or  time,  even  though  he  ought  to  be 
removed,  the  appointment  of  an  administrator  de  bonis  non  is  a 
nulhty.s  Where  the  county  court  of  competent  jurisdiction  in 
a  State  has  granted  probate  and  letters  testamentary,  or  admin- 
istration of  an  estate,  the  same  court  has  jurisdiction  to  grant 
administration  de  bonis  nojiJ^     And  the  American  doctrine  is 

'  \Vms.  Exrs.  474;  2  Vein.   514;  62  nington,  68  Mich.  133.     Administration 

Tex.  54.     But  as  to  a  co-administrator  de  bonis  non  may  be  needful  to  perfect 

where  one  resigns,  under  some  codes,  some  one's  title  to  assets.     25  Fla.  980. 

see  131  U.  S.  315.  ■*  Finn  7'.  Hempstead,  24  Ark.  iii. 

M  See  Taylor  t'.  Brooks,  4  Dev.  &  B.  L.^  ^  Creath    v.    Brent,    3    Dana,    129; 

139  ;  Donaldson  ^'.  Raborg,  26  Md.  312  Hooper  v.    Scarborough,    57  Ala.   510. 

3  Hinton  v.  Bland,  81   Va.  588,  595;  Under    Mississippi    statutes,  however, 

5  Rand,  51  ;  Clarke  v.   Wells,  6  Gratt.  peculiar  provision  is   made  for  a  new 

475.     Wherever  money  is  to  be  paid  to  grant  of  letters  in  the  county  to  which 

the  decedent's  estate,  an  administrator  the  administrator   moves  or  to  which 

lie  bonis  lion  is  a  necessary  party.     81  the  property  is  removed.     Watkins  z^. 

Va.  ib.    And  see  4  Dem.  487.     An  ad-  Adams,  32  Miss,  t^t^i-     ^^  to  what  con- 

ministrator  refused  to  bring  a  suit  on  a  stitutes  removal  from  office,  resignation, 

certain  cause  of   action,  resigned    and  etc.,  see  c.  post. 

was  discharged;  and  administration  de  ^  Lyons,  £x  parte,  2  Leigh,  761. 
bonis  non  was  granted.     Merkle  v.  Ben- 


CHAP.   IV.]  APPOINTMENT    OF    ADMINI.STRATORS.  §    I  29 

thai  the  administrator  dc  bonis  non  derives  his  title  from  the 
deceased,  and  not  from  his  predecessor  in  office.' 

v^   1 29.    Administration    de    bonis    non ;   to  vyhom  committed.  — 

Administration  dc  bonis  non  is  usually  committed  according  to 
the  rules  already  laid  down  concerning  the  original  grant  of  let- 
ters. Thus,  for  administration  dc  bonis  non  with  the  will 
annexed,  administration  with  the  will  annexed  furnishes  the 
criterion  of  preference.^  And  for  administration  de  bonis  non 
on  an  intestate  estate,  the  ecclesiastical  rule,  sanctioned  likewise 
by  courts  of  common  law,  has  been  that  there  is  no  distinc- 
tion in  the  choice  between  this  and  original  administration.^ 
But  while  these  rules  prevail  in  pLngland,  they  differ  in  the 
United  States.^  Thus  the  New  York  statute  provides  that  let- 
ters shall  be  granted  "to  the  widow,  next  of  kin,  or  creditors" 
of  the  deceased  "in  the  same  manner  as  thereinbefore  directed 
in  relation  to  original  letters  of  administration,"  but  without 
prescribing  the  order  of  preference  as  between  the  classes 
named.5  But  in  other  States,  Massachusetts  for  instance,  it  is 
provided  that  where  a  sole  executor  or  administrator  dies  before 
he  has  fully  administered  the  estate,  the  next  of  kin  of  the  de- 

'  Foreign  Missions,  /;/   re,  27  Conn.  ^  Wms.  Exrs.  7th  ed.  472  ;  §  124. 

344.     The  reduction  of   tlie   assets  to  ^  Wms.  Exrs.  474,  475  ;  2  Hagg.  Ap- 

casli  is  not  necessarily  a  full  settlement  pendix,  169,  170.     See  §§  97-1 11. 

of  the  estate,  so  as  to  dispense  with  ad-  '•  If  creditors  of  an    estate  declared 

ministration  de  bonis  non.     Donaldson  insolvent    fail   to  nominate,  the   court 

V.  Raborg,  26  Md.  312.     And  such  ad-  may  appoint  an  administrator  dc  bonis 

ministration  may  be  proper  where  the  non  at  discretion.     Long  v.  Easly,   13 

executor  has  advanced  for  debts    and  Ala.  239.     A  female  first  cousin  on  the 

distribution  from  his  own  funds,  but  has  father's  side  takes  precedence  of  a  male 

not  had  an   opportunity    to  reimburse  first  cousin  on  the  mother's  side  under 

himself.     Munroe  z/.  Holmes,  13  Allen,  the  Maryland  code.     Kearney  v.  Tur- 

109.  ner,  28  Md.  40S.     The  widow's  prefer- 

Every  administrator  after  the  first  is  ence  is  considered  in  Pendleton  v.  Pen- 
an administrator  de  bonis  non  in  fact,  dleton,  14  Miss.  448.  The  creditor  for 
and  it  is  not  needful  that  this  should  so  the  greatest  amount  will  be  appointed 
appear  of  record.  Veach  v.  Rice,  131  administrator  ^^  ^o««>  «o«,  other  things 
U.  S.  293,  315.  That  such  administra-  being  equal.  (  Cutlarz/.  Quince,  2  Hay\v.  J 
tion  may  be  granted  because  of  debts  (N.  C.)  60. 

reported  desperate  by  the  former  repre-  '  Bradley  v.  Bradley,  3  Redf.  (N.  Y.) 

sentative,  which  prove  later  collectible,  512.       This    statute    is    construed   to 

see  62  Conn.  218.  give  the  residuary  legatee  preference  as 

i75 


§    130  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

ceased  have  no  right  to  claim  administration  dc  bonis  non,  but 
the  judge  of  probate  may  grant  it  to  any  suitable  person.' 

The  grant  of  administration  dc  bonis  non  regards,  according 
to  the  better  reasoning,  the  interest  of  the  original  estate,  rather 
"than  of  those  representing  the  original  appointee,  whose  man- 
agement, indeed,  may  require  a  close  investigation,  after  his 
death,  removal,  or  resignation  ;^  and  hence  it  seems  better  still 
that  the  court  should  have  power  to  appoint  at  discretion  some 
third  person  committed  to  neither  interest,  but  impartial  be- 
tween them,  as  well  as  energetic  and  prudent.  So,  too,  in  de- 
termining here  the  right  of  kindred  to  administer,  the  status  at 
the  death  of  the  person  who  left  the  estate,  and  not  the  status 
at  the  time  the  trust  became  vacant,  should  be  regarded ;  ^  for 
thus  does  the  appointment  go  by  the  beneficial  interest. 

§  1 30.  Death  of  Surviving  Spouse  pending  Settlement  of  De- 
ceased Spouse's  Estate.  —  If  the  husband  dies  pending  the  settle- 
ment of  his  deceased  intestate  v/ife's  estate,  the  interest  will  de- 
volve upon  his  next  of  kin.  This  is  the  English  rule,  and  it  applies 
in  this  country  wherever,  certainly,  the  right  to  administer  for  a 
husband's  own  benefit  prevails.  But  by  the  old  ecclesiastical  prac- 
tice in  England,  the  course  of  administration  was  irregular.  If 
the  husband  died  before  his  appointment,  administration  was 
granted  to  the  wife's  next  of  kin  and  not  the  husband's  ;  such 
administrator,  however,  being  treated  in  equity  as  trustee  for 
the  husband's  legatees  or  next  of  kin.''     But  thus  to  pass  over 

against  the  widow,  where  the  sole  exec-  i  P.  &  D.  459 ;  and  see  L.  R.  i  P.  &  D. 

utor  dies,  in  like  manner  as  if  he  had  450,  538. 

renounced.       lb.     And    see    Cobb    v.  If  a  married  woman  be  executrix  or 

Beardsley,  37  Barb.  192;  sjtpra,  §  99.  administratrix  and  dies,  those  interested 

'  Neither  widow  nor  next  of  kin  have,  in  the  estate,  rather  than  her  surviving 
therefore,  a  right  to  claim  administra-  husband,  should  be  taken  for  the  suc- 
tion de  bonis  fion  in  Massachusetts,  cession.  Wms.  Exrs.  416.  The  mar- 
Russell  V.  Hoar,  3  Met.  (Mass.)  187.  riage  of  a  woman,  serving  in  such  a  ca- 

'^  Under  the    English    Stat.  20  &    21  pacity,  is  by  some  codes  made  to  termi- 

Vict.  c.  77,  authorizing   a  disregard  of  nate  the  trust  so  that  administration  de 

the  usual    priority  under  "  special   cir-  /lonis  non  would  be  proper.     Mass.  Gen. 

cumstances,"  etc.,  joint  grant  of  admin-  Stats,  c.  loi,  §  i.    And  see  supra,  §  128. 

istration  de  bonis  non  has  been  made  to  ^  Wms.  Exrs.  475,  476;   i    Cas.  temp, 

a  next  of  kin  and  a  person  entitled  in  Lee,  179. 

distribution.     Grundy,  Goods  of,  L.  K.  'Schoul.  Hus.  &  Wife,  §  415;  Wms. 

176 


CHAP.   IV.]  APPOINTMENT    OF    ADMINISTRATORS.  §    '3' 

those  beneficially  interested  for  strangers  pro  forma,  who  might 
be  hostile,  seemed  so  contrary  to  sound  principle,  that  the  hus- 
band's representatives  were  afterwards  preferred  in  a  case  of 
administration  de  bonis  non,  and  it  was  held  that  administration 
ought  to  go  with  the  interest,  whether  the  husband  had  taken 
out  letters  on  his  wife's  estate  before  his  own  death  or  not.'  In 
fine,  the  more  rational  rule  has  been  established,  both  in  Eng- 
land and  the  United  States,  that  administration  on  the  wife's 
estate  shall  be  granted,  in  case  of  the  husband's  death  pending 
its  settlement,  to  the  husband's  representatives  ;  unless  indeed 
(as  under  a  marriage  settlement  or  some  peculiar  statute)  the 
wife's  next  of  kin  are  entitled  to  the  beneficial  interest ;  the  grant 
in  either  case  following  the  interest.'' 

§  131-  Administration  de  bonis  non ;  Miscellaneous  Points.  — 
Where  a  statute  order  of  preference  is  preserved  in  the  grant 
of  administration  dc  bonis  non,  the  citation,  which  is  always  a 
proper  preliminary  to  the  grant  of  such  letters,  may  be  found 
indispensable  for  concluding  those  in  priority  ;  ^  otherwise,  how- 
ever, where  the  statute  dispenses  with  such  precedence  and 
leaves  the  court  to  its  own  unfettered  choice.-* 

Letters  of  administration  de  bonis  non  issue  in  due  form  as 
in  other  cases  ;  following,  however,  the  peculiar  style  appro- 
priate to  the  grant ;  and  the  probate  record  or  judicial  order 

Exrs.  412;  Squib,  v.  Wyn,  i    P.  Wms.  Paige,  87.     But  cf.  Harvey,  iV^,  3  Redf. 

378;  2  Hagg.  Appendix,  169.  (N.  Y.)  214. 

'  Fielder   v.   Hanger,    3    Hagg.   769 ;  See  as  to  a  preference,  likewise  ac- 

Attorney-General  v.  Partington,  3  H.  &  cording  to  the  interest,  where  a  widow 

C.  193;  Wms.  Exrs.  413,  414.  died  before  having  fully  administered 

^  Fielder  v.  Hanger,  stipra ;  Hendrin  her    husband's     estate,    and    collateral 

V.  Colgin,  4    Munf.   231  ;   Whitaker   tj.  kindred    on  her  side  and  on  the  hus- 

Whitaker,    6     Johns.     112;     Bryan    t.  band's  side  both  desired  letters,  Cutchin 

Rooks,    25    Ga.    622;    Harvey,    /^c,    3  z>.  Wilkinson,  1  Call  (Va.)  i. 

Redf.  (N.  Y.)  214  ;f Patterson  v.  High,  ^  Wms.  Exrs.  477,  478;   i  Hagg. 699; 

8  Ired.   Eq.  52 \  Schoul.   Hus.  &  Wife,  2  Hagg.  626. 

§415.     See  statute  in  New  York  spe-  ■'See    Sivley   v.    Summers,  57   Miss- 

cially  providing  that  the  husband's  ad-  512.     In  English  practice   the  grant  of 

ministrators   and   executors   may  take  administration  de  bonis  non  may  be  lim- 

the  property,  so  as  to  dispense  with  ad-  ited  to  a  particular  interest,  as  that  of  a 

ministration  de  bonis  non  on  the  wife's  sole  creditor.     Burdett,  Goods  of,  L.  J. 

estate.     Lockwood    v.    Stockholm,    11  45,  P.  D.  A.  71. 
12                                                 177 


§132  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

makes  due  reference  to  the  former  grant  and  the  manner  of  its 
termination.  The  administrator  thus  appointed  makes  oath  and 
quaUfies  after  the  manner  of  a  general  administrator,  mutatis 
imitandis^  This  sort  of  administration  is  usually  to  be  regarded 
as  a  general  grant  ;  but  under  exceptional  circumstances  it  may 
be  limited.^ 

§  132.  Temporary  Administration;  Administration  during  Mi- 
nority (durante  minore  aetate). —  Temporary  administration  de- 
serves attention  among  the  peculiar  classes  enumerated  in  the 
present  chapter.  Unlike  those  already  described,  this  adminis- 
tration is  of  a  limited  or  circumscribed  character,  in  being  con- 
fined to  a  particular  extent  of  time,  though  the  administrator 
has  the  powers  of  an  ordinary  administrator  for  the  time  being. 

To  this  class  belongs  what  is  known  as  administration  during 
minority.  Administration  during  minority  {durante  uiinorc 
(Ctatc)  may  be  granted  where  the  person  who  was  constituted  sole 
executor  under  a  will,  or  who  has  the  right  of  precedence  to  ad- 
minister an  intestate  estate,  is  under  age,  and  therefore  legally 
incapable  of  serving  for  the  time  being.  In  the  one  instance, 
administration  during  minority  with  the  will  annexed  may  be 
properly  committed  to  another ;  in  the  other,  administration 
simply,  with  the  like  quahfication.  English  practice  deals  with 
this  administration  more  fully  than  American  ;  ^^  but  it  is  recog- 
nized more  or  less  clearly  in  parts  of  the  United  States,  where, 
however,  the  policy  is  to  avoid  such  grants  limited  in  terms  as 
much  as  possible. ■*     If  there  are  several  executors,  and  one  of 

'  See  Wms.  Exrs.  478,  479.  Barron,  35  N.  II.  4S4,  493,  pe7-  Bell,  J. 

^In  English  practice  it  has  been  lim-  And  see  Mass.  Gen.  Stats,  c.  93,  §  7,  as 

ited  in   certain   instances.     See    Ham-  to  committing  administration  with  the 

mond,  Goods  of,  L.  R.  6  P.  D.  104.    So  will  annexed  where  the  executor  namtJ 

American  statutes  provide,  too,  where  in  the  will  of  the  deceased  is  a  minor, 

this  administration  is  taken  out  after  In  North  Carolina,  the  court  may  a;) 

twenty  years,  as  to  property,  etc.,  ascer-  point  an  administrator  durante  miuoii 

tained  afterwards.     Mass.    Pub.   Stats,  late,  where  the  widow  is  under  twenty- 

c.  loi.  one  years  of  age,  and  give  the  adminis- 

^Wms.  Exrs.  479-495  ;  Copez'.  Cope,  tration  to  her  on  her  attaining  full  ago, 

L.  R.  16  Ch.  D.  49.  or  the  office  may  be  filled  by  such  per- 

*  Pitcher  z/.  Armat,  6  Miss.  288;  Ell-  son  as  she  .shall   nominate.     Wallis  &. 

maker's  Estate,  4  Watt.s,  34;  Taylo;  v.  >^v\\\<,,  i  Wins.  (N.  C.)  78.      ) 

178 


CHAP.   IV.]  APPOINTMENT    OF    ADMINISTRATORS.  §    133 

them  is  of  full  age  and  capacity,  administration  during  minority 
need  not  be  granted,  because  the  person  of  full  age  may  serve, 
notwithstanding  the  nonage  of  others.' 

The  usage  of  the  English  courts  has  been  to  grant  adminis- 
tration during  minority  to  the  child's  guardian  ;  but  this  rule  is 
not  invariable ;  and  next  of  kin  and  guardians  alike  may  be 
passed  by  ;  for  after  all  this  sort  of  administration  is  a  grant 
discretionary  with  the  court.^  An  administrator  durante  niinore 
(State  has  the  functions  of  an  ordinary  administrator  so  long  as 
his  authority  lasts. ^  It  was  formerly  held  that  an  infant  execu- 
tor was  capable  of  serving  at  seventeen,  but  the  confusion  of 
legal  rights  and  responsibilities  thereby  entailed  upon  the  ad- 
ministration of  estates  ended  with  the  prohibition  of  statute  38 
Geo.  III.  c.  S;.-* 

Where  there  are  several  executors,  all  under  age,  and  admin- 
istration during  minority  is  granted  in  consequence,  it  will  cease 
upon  any  one  of  the  executors  coming  of  age.5 

§  133-  Temporary  Administration;  Administration  durante  ab- 
sentia.—  We  have  elsewhere  seen  how  executors  and  adminis- 

■  Wms.  Exrs.  479.     See  Cartwright's  &  M.  244.    And  see  Burchmore,  Goods 

Case,   I    Freem.   258.     The   Massachu-  of,  L.  R.  3  P.  &  D.  139. 

setts  statute  provides  that  in  such  a  case  ^Cope  v.   Cope,  L.  R.  16  Ch.  D.  49. 

the  other  executor  shall  administer  un-  But  formerly  the  opinion  prevailed  that 

til  the  minor  arrives  at  full  age,  when,  such  administrator  had  scarcely  more 

upon   giving  bond  and  qualifying,  the  than  a  bailiff's   or  servant's  authority, 

latter  may  be  admitted  as  joint  executor  See  Wms.  Exrs.  553,  554,  showing  how 

with  him.     Mass.  Gen.  Stats,  c.  93,  §  7-  the  functions   were  very  gradually  ad- 

.\s  to   administration,  American  prac-  mitted  by  judicial  precedents, 

tice  usually  passes  over  those  in  minority,  ''Section  6  of  this  act,   reciting  the 

and    selects,    without    any    punctilious  inconvenience  of  grants  to  infants  under 

regard  for  their  right  of  choice,  some  the  age  of  legal  majority,  enacts  that 

suitable  administrator  invested  with  gen-  "where  an  infant  is  sole  executor,  ad- 

eral  powers  as  in  other  cases.  ministration  with  the  will  annexed  shall 

^  Wms.  Exrs.  481,  482,  and  cases  be  granted  to  the  guardian  of  such  in- 
cited; I  Hagg.  381.  The  English  Pro-  fant,  or  to  such  other  person  as  the 
bate  Act,  §  73,  enlarges  the  discretion  spiritual  court  shall  think  fit,  until  such 
of  the  courts.  See  its  application  under  infant  shall  have  attained  the  full  age 
a  will  making  the  daughter  sole  execu-  of  twenty-one  years,  at  which  period, 
tor,  where  limited  administration  was  and  not  before,  probate  of  the  will  shall 
granted  to  the  trustees,  but  probate  was  be  granted  to  him."  Wms.  Exrs.  485. 
refused.     Stewart,  Goods  of.  L.  R.  3  P.  '4    Burn    Eccl.    Law,    228  ;  3  Redf. 

Wills,  107. 
179 


§    133  KXECLTOKS    AND    ADMINISTRATORS.  [rAKTII. 

tralors  out  of  the  jurisdiction  may  substitute  their  nominees; 
and  what  general  statute  provisions  arc  made  for  the  case  of 
non-residence,  as  by  taking  out  letters  and  having  a  resident 
attorney  authorized  to  accept  service.'  But  in  English  ecclesias- 
tical practice,  if  probate  had  not  been  obtained,  and  the  sole 
executor  named  in  the  will  was  out  of  the  kingdom,  a  limited 
administration  durante  absentia  might  be  granted,  limited  in 
time  correspondingly ;  and  so,  too,  where  the  next  of  kin  was 
abroad,  and  letters  of  ordinary  administration  had  not  been 
granted.'  Similar  grants  arc  found  in  our  earlier  American 
l)ractice.^  But  the  more  usual  course  in  the  United  States  at 
present  is  (subject  of  course  to  local  variations  in  accordance 
with  statute  direction  on  the  subject),  for  the  court  to  appoint 
some  one  the  general  administrator  of  the  estate,  either  with  or 
without  the  will  annexed,  according  as  one  may  have  died  testate 
or  intestate,  treating  this  official  as  the  general  and  responsible 
representative  of  the  estate ;  the  case  admitting,  perhaps,  of 
what  we  term  a  special  administration,  if  the  emergency  be 
pressing  and  likely  to  be  temporary  only ;  while  here  the  rights 
of  next  of  kin,  as  such,  to  dictate  administration,  are  more  lightly 
weighed  than  in  England,  under  all  circumstances.'* 

Lord  Holt  has  observed  that  it  was  reasonable  there  should 
be  an  administrator  durante  absentia,  and  that  this  administra- 
tion stood  upon  the  same  reason  as  an  administration  durante 
mi  no  re  ceiate  of  an  executor,  viz. :  that  there  should  be  a  person 
to  manage  the  estate  of  the  testator  till  the  person  appointed 
by  liim  is  able.'     But  while  both  grants  are  of  the  temporary 

'  Supra,  §§  109,  127.  a  case  perhaps  for  removal  from  office 

^  Wms.    Exrs.     502-512;     Clare    r-.  in    some  States.     The  Louisiana  code 

Hedges,    i    Lutw.  342;  .s.  c.  cited  in  2  in  the  case  of  an  "absentee  "  requires  a 

r.    Wms.   579.     This   case  was   misre-  curator  ad  hoc  appointed  to  defend  cer- 

ported  in  4   Mod.    14,  as  is  shown  in  tain  suits.     Morris  7a  Bienvenu,  30  La. 

Slater  v.  May,  2  Ld.  Raym.  1071.  Ann.  878;  Weaver  z'.  Penn,  27  La.  Ann. 

3  Willing  V.  Perot,  5  Rawle,  264.  1 29.     Good  security  will  be  reqxiired  of 

■*  See  §  135, /'^'j/,  as  to  special  admin-  an    absentee,    who,    under   some    local 

istration.     Various  local   statutes  may  statute.s,  must  appoint  an  attorney  au- 

be  found  to  meet  the  case  of  non-resi-  thorized  to  accept  process,  etc.,  on  his 

dence  or  absence.     Prolonged  absence,  Ixihalf. 

detrimental  (o  the  interests  of  an  estate,  '  Slater  v.  May,  2  Ld.  Raym.  1071. 

and  involving  negligence,  might  present 

180 


CHAP.    IV.]  APPOINTMENT    OF    ADMINISTRATORS.  §    I  33 

administration  sort,  it  is  not  certain  that  they  confer  commen- 
surate authority.' 

Administration  durante  absentia  was  formerly  available  only 
where  original  letters  testamentary  or  of  administration  had  not 
issued ;  in  other  words  it  was  for  the  preliminary  convenience 
of  the  estate  alone.  When  probate  had  once  been  granted,  and 
the  executor  afterwards  went  abroad,  the  spiritual  courts  would 
not  grant  new  administration.'  This  produced  inconvenience; 
for,  while  a  power  of  attorney  might  answer  all  ordinary  pur- 
poses on  the  absentee's  behalf,  there  are  special  cases  where 
the  demand  for  a  personal  representative  within  the  jurisdiction 
is  indispensable.  Hence  the  statute  38  George  III.  c.  87,  was 
passed,  which,  in  connection  with  still  later  acts,  permits  the 
grant  of  special  administration  whenever  the  ordinary  executor 
or  administrator  goes  and  remains  abroad  out  of  the  reach  of 
process ;  the  special  appointee  having  been  at  first  intended 
simply  to  represent  the  estate  in  proceedings  in  equity,  though 
limited  grants  are  now  permitted  in  a  much  wider  sense.^  The 
appointment  of  a  mere  attorney  may  terminate  by  the  death  of 
the  absent  fiduciary  who  conferred  it ;  but  no  such  effect  attends 
the  grant  of  limited  administration  under  these  statutes.''  The 
limited  purpose  of  the  grant,  as  for  pending  proceedings  in  court, 
is  likewise  protected  by  the  same  means.      But,  aside  from  leg- 

'  Thus  it  is  observed  that  an  admin-  extended  tlie  operation  of  this  statute 

istrator  dtirante  absentia  may  assign  the  to    the    case  of   absent  administrators, 

leaseholds  and  other   property  of   de-  And  by  the  statute  21  &  22  Vict.  c.  95, 

ceased.     Webb  v.   Kirby,  3  Sm.  &  G.  §  18,  a  general  scope  was  given  to  these 

T,-},T^.  acts,  "  whether  it  be  or  be  not  intended 

^  In    South    Carolina    administration  to  institute  proceedings  in  the  court  of 

durante  absentia  cannot  be  granted  after  chancery."     Limited    grants    are    now 

probate  of  the  will  and  letters  testamen-  accordingly  made  as  the  convenience  of 

tary  are  granted.     Griffith  v.  f'razier,  8  an  estate  may  require.     Ruddy,  Goods 

Cranch,  9.  of,  L.  R.  2  P.  &D.  330;  Jenkins,  Goods 

'  Wms.  Exrs.  503-509,  citing  these  of,  28  W.  R.  431  ;  Richardson,  Goods  of, 
.statutes  and  numerous  decisions.  The  35  L.  T.  767.  Where  next  of  kin  are 
act  38  Geo.  III.  c.  87  (known  as  Mr.  in  a  distant  country  and  immediate 
Simeon's  act),  had  only  this  limited  ap-  necessity  arises,  the  resident  agent  or 
phcation  to  proceedings  in  equity.  It  bookkeeper  of  the  intestate  may  be 
was  passed,  moreover,  with  reference  to  temporarily  appointed.  (1897)  P.  82. 
executors  only.  The  Court  of  Probate  "  Wms.  Exrs.  509  ;  Taynton  v.  Han- 
Act,  20  &   21  Vict.   c.   77,   §  74   (1857),  nav   3  B.  &  P.  26. 

181 


§    134  EXECUTORS    AND    ADMINISTRATORS.  [PART  11. 

islation,  and  as  concerning  the  appointment  durante  absentia 
preliminary  to  probate  ox  to  the  grant  of  ordinary  administra- 
tion, of  which  the  court  took  earlier  cognizance,  it  is  said  that 
such  administration  is  at  an  end  the  moment  the  absentee  re- 
turns.' 

§  134.  Other  Temporary  Administrations;  Administration  pen- 
dente Lite,  etc.  —  English  probate  practice  recognizes  other  tem- 
porary administrations  ;  usually  limited,  however,  in  purpose  as 
well  as  time.  Administration  pendente  lite  is  of  this  descrip- 
tion ;  a  grant  long  since  allowable  where  controversy  arose  touch- 
ing the  right  of  administration,  and  afterwards  equally  permitted 
in  contests  over  the  probate  of  wills  and  letters  of  executorship.^ 
Administrators /f;/(fr;//'d'  lite  are  virtually  appointees  of  the  pro- 
bate court,  corresponding  nearly  to  receivers  in  chancery,  so  far 
as  the  occasion  for  an  appointment  may  be  regarded,  and  they 
are  assumed  to  be  indifferent  between  the  contending  parties.^ 
No  one  should  be  appointed  by  the  court  to  this  trust  who  stands 
committed  as  to  the  choice  of  one  contestant  against  the  other  ; 
nor  should  the  decedent's  estate  be  subjected  to  the  cost  and 
encumbrance  of  such  an  administration,  where  a  rightful  execu- 
tor or  administrator  can  discharge  the  duties  of  his  office,  whose 
appointment  is  not  questioned.^  Administration  pendente  lite 
is  recognized  in  parts  of  the  United  States  under  various  quali- 
fications, though  statutes  of  more  extensive  scope  are  found  to 
include  this  case  under  what  is  rather  to  be  termed  special  ad- 

'  Raiiisford  7\  Taynton,  7  Ves.  466  ;  jurisdiction  as  to  controversies  touching 

Wms.  Exrs.  509.  the  validity  of  a  \s\\\  or  for  obtaining, 

^  See  Wms.  Exrs.  496-501,  and  cases  recalling,  or  revoking  any  probate  or  any 

cited  passim.      Formerly   the    English  grant  of  administration.     Act  20  &  21 

spiritual  court  would  not  appoint  an  ad-  Vict.  c.  77,  §  70.     And  see  the  later  act, 

ministrator/^«a'ir;/^<? ///^  except  in  ca.ses  21   &   22   Vict.  c.  95,  §§21,  22,  which 

involving   the    right  to  administration,  gave  still  further  scope  to  this  appoint- 

Moore,  636;  3  Keb.  54.     But  it  was  de-  ment.     Wms.  Exrs.  496,  497. 
cided  in   1731    that  such  administrator         ^  Wms.  Exrs.  498-501  and  ca.ses  cited, 
might  be  appointed  in  contests  touching         "  Mortimer  v.   Paull,  L.  R.  2  P.  &  D. 

an  executorship.       Walker  v.   Woolas-  85.     An  appointment  by  consent  of  the 

ton,  2  P.  Wms.  589.    The  Probate  Court  contesting  parties  obviates   objections 

Act  of  1S57  gave  the  probate  courts  full  of  this  character.     Wms.  Exrs.  497. 

182 


Chap,  iv.]        appointment  of  administrators.  §  134 

ministration.'  The  powers  of  the  EngHsh  administrator  pen- 
dente lite,  though  originally  limited  by  construction,  have  been 
so  far  extended  under  the  Court  of  Probate  Act  of  1857,  '^"d 
later  acts,  that  he  may  be  made  receiver  of  real  estate  pendente 
lite,  with  power  to  receive  rents  and  profits,  and  let  and  man- 
age, and,  as  to  personal  estate,  exercise  all  the  rights  and  pow- 
ers of  a  general  administrator,  other  than  the  distribution  of 
the  residue  :  subject,  nevertheless,  to  the  immediate  control 
and  direction  of  the  court,*  which  may  likewise  require  security 
and  grant  him  a  reasonable  remuneration  for  his  trouble.^  The 
authority  of  an  administrator /tv/^^/^:';//^  lite  ceases  with  the  suit  ;•♦ 
as  for  instance,  where  the  contest  was  over  a  will,  upon  the  due 
admission  of  the  will  to  probate.^ 

The  old  books  suggest  other  occasions  for  requiring  a  limited 
administration  as  to  time  ;  as  where  the  testator  appoints  a  per- 
son to  be  his  executor  at  the  expiration  of  five  years  from  his 
death,  in  which  case  administration  with  the  will  annexed  for 
the  intermediate  period  from  probate  seems  proper.'^  Admin- 
istration limited  until  a  will  left  in  a  distant  land,  or  missing 
and  requiring  long  search  or  delay,  could  be  found  and  presented 
for  probate,  has  been  granted  in  various  modern  English  cases, 
agreeably  to  the  peculiar  state  of  facts  presented  and  the  ur- 

*  See  %\'i'^,post ;  Lamb  v.  Helm,  56  South  Carolina,  collect  the  estate  for 
Mo.  420 ;  Crozier  v.  Goodwin,  i  Lea,  the  purpose  of  administration.  Kam- 
368;  Wade  V.  Bridges,  24  Ark.  569.  iner  7'.  Hope,  9  S.  C.  253.  Local  stat- 
An  administrator  appointed  by  the  chan-  utes  should  be  consulted  on  such  points 
eery  court  under  Tennessee  code,  §  2213,  by  the  American  practitioner.  In  Mary- 
is  not  a  mere  administrator /(?«^f«fc //A',  land  such  an  administrator  may  be 
but  a  general  administrator.  Todd  v.  required  to  discharge  debts  of  the  de- 
Wright,  12  Heisk.  442.  An  adminis-  cedent.  Baldwin  v.  Mitchell,  86  Md. 
trator  pendente  lite  should  not  be  ap-  379.  See  also  54  N.  J.  Eq.  638.  He 
pointed  after  the  general  administrator  may  be  sued  by  a  creditor  of  the  estate, 
has  fully   settled   the  estate.     Fisk  7>.  (1897)  i  Ch.  866. 

Norvell,  9  Te.x.  13.     And  see  Slade  z'.)  ^  Stats.    20   &    21    Vict.   c.  77,   §72; 

Washburn,  3  Ired.  L.  557.       \  21   &   22  Vict.  c.  95,  §21  ;  Wms.  Exrs. 

^Statutes  20 &  21  Vict.  c.  77,  §§  70,  71 ;  496. 

Wms.  Exrs.  496,  497  ;  Dawes,   Goods  ""Cole  v.  Wooden,  18  N.  J.  L.  15. 

of,  L.  R.  2   P.  &  D.  147  ;  Tichborne  v.  =  wieland  v.  Bird,  (1894)  P.  262. 

Tichborne,  L.  R.  2   P.  &   D.  41.     An  Hiodolph.  pi.  2,   c.  30,  §5;    Wms. 

administrator /^wif^w^^   lite   cannot,    in  I'",.\rs.  513. 

183 


§    135  EXECUTORS    AM)    ADMINISTRATORS.  [PART  11. 

gency  of  an  immediate  appointment.'  Administration,  too,  ap- 
pears by  the  Englisli  rule  to  be  well  granted  where  a  sole 
executor  or  administrator  becomes  insane  and  incapable  of  dis- 
charging his  official  functions  ;  -  or  perhaps  out  of  regard  to  a 
beneficiary  or  person  entitled  ordinarily  to  take  the  office ;  so 
that  a  vacancy  shall  be  filled  by  some  one  as  for  the  use  and 
benefit  of  the  insane  person,^  such  grants  running  as  during 
such  incapacity. 

§  135.  Special  Administration,  for  Limited  and  Special  Pur- 
poses, etc. —  While  the  English  probate  practice  accords  so 
many  varieties  of  temporary  administration,  it  also  limits  fre- 
quently the  grant  to  specific  purposes ;  the  prime  object  being 
a  temporary  protection  of  the  estate  and  all  parties  in  interest. 
And  thus  administration  may  be  granted  in  exigencies  such  as 
we  have  just  considered,  limited  in  terms  to  the  purpose  of  some 
particular  litigation. ■♦  In  an  exceptional  case  (though  not  with- 
out strong  reason),  administration  may  be  granted  so  as  to  be 
limited  to  certain  specified  chattels,  while  the  general  adminis- 
tration goes  elsewhere  ;  ^  or  administration  may  be  revived  for 
the  performance  of  some  particular  act.*" 

The  result  of  all  this  should  be  to  discourage  any  specific 
enumeration   of   limited   or   special   administrations  of  various 

'Metcalfe,    Goods  of,    i    Add.    343;  known  relatives,  the  English  court,  on 

Campbell,  Goods  of,   2    Hagg.  555  ;  2  the  ground  that  expense  was  incurred 

Add.  351  ;  (1893)  P.  21.  daily,  and  the  value  of  the  estate  depre- 

^  Phillips,   Goods  of,  2  Add.  336;   i  elating,  granted  a.dmm\stTa.t\on  acf  co/li- 

Salk.  36;   Wms.   Exrs.   518.     And  see  genda  bona  ^'lih  power  to  sell  at  once, 

as   to    physical    incapacity    by  illness.  Schwertfegen,  Goods  of,  24  W.  R.  298. 

Ponsonby's  Goods,  (1895)  P.  287.  And  see  Bolton's  Goods,  (1899)  P.  186, 

'lb. ;  Evelyn,  Ex  parte,  2  M.  &  K.  4.  where  the  next  of  kin  were  in  a  distant 

*  See  Howell  v.  Metcalfe,  2  Add.  348,  continent,  and  it  was  necessary  to  sell 
351,  note,  which  was  limited  to  answer-  the  good  will  of  a  business  at  once, 
ing  a  specified  suit  in  chancery  ;  also  We   have   seen   that    administration 
I  Hagg.  93 ;  2  Sw.  &  Tr.  6r4.  ilurante   minorc  (rtate   is   essentially    a 

'  Harris    v.    Milburn,     2    Hagg.   62  ;  general   or  full  admini.stration  while  it 

Somerset,  Goods  of,   L.   R.  i    P.  &  D.  lasts  ;   and  so  in  order  to  be  efficacious, 

350;  Wms.  Exrs.  520-528.     As  to  ad-  should  administration  during  the  lunacy 

ministration  in   different  countries,  see  of  an  executor,  etc.     See  sections  pre- 

c.  7,  post,  ancillary  administration.  ceding. 

*  Where    A.   died   intestate,    without 

184 


CHAP.   IV.]  APPOINTMENT    Ol"    ADM  IN  ISTK.V  TOR.S.  §    I  35 

kinds,  as  at  English  law  ;  whose  real  force  and  effect,  as  in  the 
kinds  pendente  lite,  and  durante  absejitia,  it  is  not  easy  to  de- 
fine. The  vital  elements  in  all  such  grants  are  two  :  limitation 
of  time,  and  limitation  of  purpose  ;  and  these  limitations  fre- 
quently, but  not  always,  subsist  together.  In  the  United  States, 
legislation  directs,  as  it  may,  the  whole  matter,  and  American 
policy  appears  to  be  to  regard  general  or  full  administration,  on 
the  one  hand,  whether  original  or  de  bonis  non,  and  whether  as 
to  estates  testate  or  intestate,  as  (together  with  appointing  ex- 
ecutors) the  usual  and  normal  grant  of  authority  ; '  and  discour- 
aging on  the  other  hand  limited  grants  under  strange  names 
upon  mere  judicial  discretion,  but  rather,  facilitating  removals 
and  the  creation  of  vacancies  in  an  emergency,  to  provide  by 
way  of  substitute  for  the  miscellaneous  kinds  of  limited  admin- 
istration, what  may  be  termed  a  special  administration.  This 
special  administration  is  temporary  by  inference,  because  wholly 
superseded  by  the  grant  of  general  administration  or  letters  tes- 
tamentary ;  and  it  is  limited  in  scope  to  the  necessities  of  the 
situation.  Legislation  defines  this  scope  ;  and  special  adminis- 
tration thus  becomes  a  clearly  understood  grant,  well  adapted 
to  the  various  exigencies  likely  to  arise  for  invoking  it.  Its 
chief  purpose  is  ad  colligendum,  or  rather  the  collection  and 
preservation  of  the  decedent's  effects ;  and  the  statute  which 
creates  the  office  explains  sufficiently  its  purpose  and  incidents. 
Two  general  administrations  cannot,  we  all  admit,  subsist  at  the 
same  time  ;  nor,  as  a  rule,  can  a  special  and  general  grant.  For 
in  this  latter  instance  the  special  grant  necessarily  precedes  a 
general,  being  made  to  suit  a  temporary  exigency  ;  an  exigency 
which  may  precede  either  the  original  appointment  or  the  filling 
of  some  vacancy  created  by  an  appointee's  death,  removal,  or 
resignation.^ 

'  Lyon,  Ex  parte,  60  Ala.  650.     As  burn,  3  Ired.  L.  557.     Where  the  pro- 

between  the  words  "  special "  and  "  gen  bate  of  a  wall  has  been  in  Htigation,  the 

eral "  in  a  grant  of  administration,  see  power  and  functions  of  an  administra- 

Jones  V.  Ritter,  56  Ala.  270.  tor  pendente  lite  are  ended  when   the 

''Mass.  Pub.   Stat.   c.  130,  §§  10-17.  contest  is    entirely  over,  the  will   duly 

Letters  of  general  administration  issued  admitted,  and   the   executor   qualified, 

during  the  pendency  of   a  contest  over  Ro  Bards  v.  Lamb,  89  Mo.  303  ;  Bald- 

a  will  would   be  null.     Slade  v.  Wash-  win    v.  Mitchell,  86    Md.  379.     But   if 

185 


§    135  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

Special  administration  is  well  developed  in  the  Massachu- 
setts probate  practice.  When  (as  the  statutes  of  that  State  ex- 
pressly provide)  by  reason  of  a  suit  concerning  the  proof  of  a 
will,  07'  from  any  other  cause,  there  is  a  delay  in  granting  letters 
testamentary  or  of  administration,  the  probate  court  may  ap- 
point a  special  administrator  to  collect  and  preserve  the  effects 
of  the  deceased.  The  paramount  duty  of  this  special  adminis- 
trator is  to  collect  all  the  personal  estate  of  the  deceased,  and 
preserve  the  same  for  the  general  executor  or  administrator, 
when  appointed.  For  this  purpose  he  may  commence  and  main- 
tain suits,  though  creditors  of  the  estate  are  not  to  bring  actions 
against  him  ;  and  he  may  sell  such  perishable  property  and 
other  goods  as  the  judge  shall  order  to  be  sold.  In  suitable 
cases  the  judge  may  authorize  him  to  take  charge  of  the  real 
estate,  collect  rents,  and  do  all  that  may  be  needful  for  the  pres- 
ervation of  the  property."  Such  an  administration  may  readily 
be  shaped  by  the  legislature  to  meet  the  usual  exigencies  of  a 
temporary  appointment  for  limited  purposes  ;  thereby  dispensing 
with  the  cumbrous  classification  of  administration  pendente  lite, 
durante  absejitia,  and  so  on. 

In  various  States  express  provision  is  made  for  this  special  or 
temporary  administrator  who  shall  collect  and  preserve  the 
estate  for  the  permanent  and  general  appointee.  A  disinter- 
ested person,  not  a  litigant,  is  to  be  selected  ;  nor  are  the  rights 
of  widow  and  next  of  kin,  or  legatees,  so  strictly  regarded  in 
the  choice  as  they  would  be  in  a  general  administration  ;  but 
rather  the  sound  discretion  of  the  court,  aided  by  the  common 
consent  and  confidence  of  litigants  and  all  who  may  be  interested 
in  the  permanent  appointment,  directs  the  selection.  Further- 
more, it  is  the  general  rule  that  this  officer  may  be  removed  or 
superseded  in  his  functions  by  the  court,  and  that  his  powers 

there  be  an  appeal  from  the  decree  of  over  the  will  not  in  the  nature  of  an  im- 

probate,  the  executor   though  qualified  mediate  appeal.     In  Moore  v.  Alexan- 

has  no  authority  to  act,  and  the  power  der,  8i   Ala.  509,  an  administrator  with 

and  functions  of  the  temporary  admin-  full    power   was    required,  not    one  ad 

istrator  last  until   the  determination  of  /ite?n.     Cf.  (1894)    P.  262. 

the  appeal.     Brown  v.  Ryder,  42   N.  J.  '  Mass.  Pub.  Stats,  c.  130,  §§   10-17  ; 

Eq.  356;  Crozier,  A'c,  65  Cal.  332.    But  141  Mo.  642. 
cf.  63  Tex.  220,  as  to  a  later  litigation 

I  86 


CHAP.   IV.]  APPOINTMENT    OF    ADMINISTRATORS.  §    1 35 

shall  cease  whenever  general  letters  testamentary  or  of  admin- 
istration are  granted,  and  due  qualification  follows,  whether  gen- 
eral letters  be  original  or  dc  bonis  non  ;  but  that  meantime,  be- 
ing an  officer  of  the  court,  as  it  were,  litigant  parties  cannot 
obstruct  the  exercise  of  his  functions  nor  hinder  him  by  friv- 
olous appeals  from  the  judge.  For  a  trust  must  not  be  kept  in 
abeyance  which    the  law  intends  should  be  filled  at  once.' 

This  special  administration  appointment  is  preliminary  to  a 
general  one,  according  to  the  usual  American  practice,  lasts  for 
an  emergency  undefined  as  to  time,  and  cannot  be  granted  while 
a  general  appointee  holds  office,  nor  so  that  the  special  ap- 
pointee shall  fulfil  all  the  functions  of  general  executor  or  ad- 
ministrator. There  are  States,  however,  whose  code  clearly 
extends  this  appointment  to  the  temporary  necessities  of  minor- 
ity, durante  minorc  estate  ;  ^  though  it  should  be  observed  that 
here  the  exigency  lasts  for  a  definite  or  definable  temporary 
period,  like  a  guardianship,  and  that  the  appointment,  to  be  ef- 
ficacious at  all,  ought  frequently  to  confer  full  general  functions, 
as  we  have  seen  the  English  appointment  does.^     As  for  the 

'  A  "special  collector  "  is  thus  recog-  After  a  removal  from  office,  the  special 

nized  in  New  York  practice,  wherever,  administrator   may  be  appointed.     De 

by   reason   of  contest  or  other  cause,  Flechier,  Succession  of,  i  La.  Ann.  20. 

there  is  likely  to  be  delay  in  the  general  Pending  the  appeal  of  an  executrix  or 

grant.     Mootrie  v.  Hunt,  4  Bradf.  (N.  administratrix    upon    the    question    of 

Y.)  173;  Lawrence  z>.  Parsons,  27  How.  bonds,  etc.,  the  probate  court  may  ap- 

(N.   Y.)  Pr.  26;   Crandall   z/.   Shaw,  2  point  a  special  admini.strator.     Searlee/. 

Redf.    (N.   Y.)    100.     If  a  will  is  con-  Court  of  Probate,   7    R.  L   270.     And 

tested,  the  executor  named  ought  not,  see  Thompson  v.  Tracy,  60  N.  Y.  174. 

when  objected  to,  to  receive  the  special  Contest  over  an  administration  with 

appointment.     Howard   v.    Dougherty,  will  annexed  is  to  be  included  among 

3  Redf.  (N.  Y.)  535.     But  this  depends  the  exigencies  calHng  for  a  special  ap- 

on  circumstances.     2  Dem.  286  ;  4  Dem.  pointment.     Lamb   z'.    Helm,    56    Mo. 

137.     An  executor  who  is  charged  with  420.     And  see  State  codes  as  to  such 

undue  influence  in  proving   the  will  is  local  legislation. 

certainly  not  suitable,    i  Dem.  i.    That  -  Wagn.  (Mo.)  Stat.  72,  §  13,  referred 

a  widow  or  next  of  kin  has  no  preference  to  in  Lamb  7/.  Helm,  56  Mo.  420. 

in  the  choice  of  special  or  "  temporary  "  '  ow/ra,  §  133.     Except  as  the  stat- 

administrator,  see  Lamb  v.  Helm,  56  ute  may  have  provided,  a  probate  court 

Mo.  420.      The  administrator  ad  colli-  has  no  power  to  direct  a  special  admin- 

getidum  is  the  mere  agent  or  officer  of  istrator  or    "  collector  "  to  pay   debts, 

the  court,  and  may  be  compelled  at  any  legacies,  or  distributive  shares.  Haskett, 

time  to  ^ve  way  to  an  admini.strator-in-  Re,  1  Redf.   (N.  Y.)  165;  2   Dem.  292. 

chief.     Flora  v.  Mennice,  12  Ala.  836.  Nor  should  such  administrator,  nor  an 

187 


§    135  EXECUTORS    AND    ADMINISTRATORS.  [PART   11. 

departure  of  a  general  executor  or  administrator  for  foreign 
parts,  after  his  appointment,  to  remain  long  absent,  or  his  sub- 
sequent incapacity,  by  reason  of  insanity,  to  the  plain  detriment 
of  the  interests  of  the  unsettled  estate,  American  practice  seems 
to  prefer  to  the  vague  and  limited  grants  of  administration, 
usual  in  English  practice,  that  a  vacancy  shall  be  made  in  the 
office,  and  that  vacancy  filled  in  the  usual  way  ; '  unless  the  ap- 
pointment of  attorney  to  accept  service  obviates  all  objections. - 
Every  special  administrator,  or  temporary  appointee  pcndoitc 
lite,  should,  when  his  authority  ceases,  pay  over  what  he  may 
have  received,  and  transmit  the  estate  to  the  general  appointee, 
or  do  otherwise  with  it,  as  the  probate  court  shall  direct ;  render- 
ing a  proper  account  of  his  doings  and  retaining  a  proper  com- 
pensation for  his  services  ;  whereupon  his  responsibility  comes 
to  an  end,  if  his  duties  have  been  faithfully  performed.^ 

administrator  pendente    lite,     do    such  Humph.  205  ;  Jordan  v.  Polk,  i  Sneed, 

acts.     Kaminer  v.  Hope,  9  S.  C.  253;  430. 

Ellmaker's  Estate,   4  Watts,  34.     Ob-  As  to  appointing  a  special  adminis- 

serve  statute  directions  on  this  point.  trator  under  the  Iowa  code,  see  Picker- 

'  Upon  a  general  application  for  ad-  ing  v.  Weiting,  47  Iowa,  242. 

ministration,  a  special  grant  may,  in  this  -  See  Mass.  Pub.  Stats,  c.  132,  §§  8- 

State,  be  made.     Dean  v.  Biggers,  27  13,  whose  provisions  fit  the  case  of  an 

Ga.  73.     In  Tennessee,  where  the  Eng-  executor  or  administrator  removing  or 

lish  system  appears  to  be  more  closely  residing  out  of  the  State  after  his  ap- 

followed    than   in    most   other    States,  pointment. 

it  is  held  that  a  special  administration  ^  See  Ellmaker's  Estate,  4  Watts,  36. 

may  be  granted,  with  powers  to  be  ex-  As  to  the  special  administrator's  com- 

ercised  in  a  limited  manner,  or  upon  a  pensation,    see    Duncan,    Re,    3    Redf. 

part  of  the  estate  merely,  or  for  the  per-  (N.   Y.)    153.     Notice  in  court    of  his 

formance  of  a  single  act.     McNairy  v.  settlement  with  the  general  executor  or 

Bell,  6   Yerg.  302;  Smith  v.  Pistole,  10  administrator  is  not  necessary.     89  Mo. 


303- 


1; 


CIIAF.    V.J    BONDS  Ol    KXECUTOKS  AND  ADMIN  1STKAT0K.S.        ^    I  37 


CHAPTER  V. 

THE  BONDS  OF  EXECUTORS  AND  ADMINISTRATORS. 

§  1 36.  Necessity  of  Qualifying  before  Appointment ;  Security 
required  by  the  Court. —  111  modern  probate  practice,  as  we  un- 
derstand it  in  the  United  States,  an  executor  or  administrator 
is  required  to  qualify  by  giving  bonds  before  letters  conferring 
the  appointment  can  issue  to  him.  This  bond  is  expressed  in  such 
sum  as  the  probate  court  may  see  fit  to  order ;  its  form  is  estab- 
lished by  the  court  after  the  statute  requirements  ;  it  is  made 
payable  to  the  judge  or  his  successors  in  office ;  its  conditions 
recite  the  essential  duties  of  the  trust  reposed  in  the  appointee ; 
and,  filed  in  the  probate  registry,  it  serves  as  legal  security 
furnished  by  the  executor  or  administrator  for  the  benefit  of  all 
persons  who  may  be  interested  in  the  estate,  and  in  case  of 
maladministration  may  be  sued  upon  accordingly.  Sometimes 
sureties  are  required  on  these  bonds ;  and  sometimes  sureties 
are  dispensed  with. 

This  subject  we  now  examine  in  detail,  with  separate  refer- 
ence to  the  bonds  of  executors  and  of  administrators  ;  observing 
throughout  this  chapter  the  distinctions  which  obtain  in  English 
and  American  practice. 

§  137.  Bonds:  When  and  Ho-w  required  from  an  Executor. — 
In  English  practice,  the  spiritual  court  exerted,  from  early 
times,  so  little  authority  over  an  executor,  whose  credentials 
were  thought  to  be  derived  rather  from  his  testator's  selection 
than  the  ordinary,  that  bonds  could  not  be  required  from  such 
fiduciaries.  But  chancery  stretched  its  arms  for  the  better  pro- 
tection of  widows  and  orphans  while  the  ordinary  was  thus 
powerless,  and  it  became  a  rule  that  an  insolvent  or  bankrupt 
executor  could  not  only  be  restrained  by  the  appointment  of  a 

189 


§    137  EXECUTORS    AND    ADMINISTRATORS.  [P ART  II. 

receiver,  but  compelled  in  chancery,  like  any  other  trustee,  to 
furnish  security  before  entering  actively  upon  his  trust.' 

The  American  rule,  both  as  to  the  appointment  and  qualifica- 
tion of  executors,  is  far  more  consonant  to  justice  and  impartial, 
and  brings  administrators  and  executors  more  nearly  under  one 
system  of  rules.     The  qualification  of  executors  is  not  left  to 
the  interposition  of  equity,  but  is  confided  in  the  first  instance 
by  legislation  to  the  discretion  of  the  court  most  competent  to 
exercise  it ;  so  that  the  probate  court  now  passes  upon  the  bond 
in  connection  with  the  appointment,  withholding  letters  testa- 
mentary unless  the  executor  complies  with  the  judge's  prudent 
requirement.      Local  statute  prescribes  the  form  and  manner  of 
giving  this  bond,  as  well  as  indicating  the  extent  of  security. 
Thus,  in  certain  States,  the  executor,  before  letters  testamen- 
tary issue  to  him,  must  give  bond  with  condition  to  return  his 
inventory  to  the  probate  court  wnthin  the  time  fixed  by  statute ; 
to  administer,  according  to  law  and  the  will  of  the  testator,  all 
the  personal  estate  and  the  proceeds  of  all  real  estate  sold  for 
the  payment  of  debts  and  legacies ;  and  to  render  upon  oath  a 
just  and  true  account  of  his  administration  within  one  year  and 
at  any  other  time  when  required  by  the  court. ""     If  a  person 
appointed  executor  refuses  or  neglects  unreasonably  to  give  the 
statute  bond  as  required,  letters  testamentary  will  be  granted 
to  the  other  executors  if  there  be  any  such  capable  and  willing ; 
otherwise,  administration  with  the  will  annexed.     In  other  words, 
qualification  by  bond  is  a  prerequisite  to  receiving  letters  testa- 
mentary ;  the  executor  derives  his  office  only  under  a  testamen- 
tary appointment  which  has  afterwards  been   confirmed  by  a 
decree  of  the  probate  court  and  the  grant  of  letters ;  nor  is  one 
entitled  to  exercise  any  power  as  executor  until  he  has  been 
duly  qualified.     Such  is  the  rule  of  most  American  States,  as 
prescribed  by  the  legislature.^ 

'  Wms.  Exrs.  7th  ed.  237;  Holt,  310;  Echols  v.  Barrett,   6  Ga.  443;  Hall  v. 

I  Eq.  Cas.  Abr.   238,  pi.   21  ;   2   Vern.  Gushing,  g  Pick.  395;  P'airfax  z/.  Fair- 

249  ;  Slanning  v.  Style,  3  P.  Wms.  336.  fax,  7  Gratt.  36 ;  Holbrook  v.  Bentley, 

^  Smith  Prob.  Pract.  (Mass.)  60-64 ;  2,-    Comi.    502 ;   Webb   v.    Dietrich,    7 

Mass.  Gen.  Stats,  c.  93.  Watts  &  S.  401  ;  Pettingill  v.  Pettingill, 

3  Gardner   v.    Gnatt,     19    Ala.    666;  60  Me.  411;  Bankhead  z/.  Hubbard,  14 

190 


CHAP.   V.j    BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.        §    I  3/ 

As  to  furnishing  a  bond  with  surety  or  sureties,  however,  the 
executor  is  still  favored  above  administrators  in  American  prac- 
tice. Our  rule  appears  to  be  that  the  executor  shall  give  bond 
"With  sufficient  surety  or  sureties."'  But  executors  are  ex- 
empted from  furnishing  a  surety  or  sureties  (as  such  statutes 
frequently  direct)  when  the  testator  has  ordered  or  requested 
such  exemption,  or  when  all  the  persons  interested  in  the  estate 
certify  their  consent,  or,  upon  being  cited  in,  offer  no  objection. 
Even  thus,  the  judge  is  still  to  regard  the  interests  of  the  estate, 
according  to  the  preferable  practice,  and  may,  at  or  after  the 
granting  of  letters  testamentary,  require  a  bond  with  sufficient 
surety  or  sureties,  if  he  thinks  this  desirable  because  of  some 
( hange  in  the  situation  or  circumstances  of  the  executor  or  for 
other  sufficient  cause.^  Nor  is  even  the  testator's  request  for 
such  an  exemption  to  be  taken  otherwise  than  as  the  expression 
of  his  confidence  in  the  person  he  himself  designated;  and 
hence,  if  that  person  renounces  or  is  found  incapable,  the  re- 
quest cannot  operate  for  the  benefit  of  others  appointed  by  the 
court  to  administer.3  In  some  States  the  court  cannot  dispense 
with  security  even  should  the  will  direct  otherwise.'*  But  in 
others,  once  more,  the  testator's  request  appears  to  be  more  of 

Ark.  298.     One  named  as  executor  in  a  published  citation  after  the  usual  form, 

a  will  has   no  authority  to  act  without  incorporating  notice  of  the  request  to 

qualifying  after  probate,  and  his  acts  be   exempted   from  furnishing  sureties 

without  qualifying  are  void.     Moore  v.  with  that  of  the  pending  probate  and 

Ridgeway,   i  B.  Mon.  234.     And  where  application  for  letters  testamentary,  will 

a  testator   appointed   two    persons    as  suffice.     Wells  v.  Child,   12  Allen,  330. 

executors  of  his  will,  only  one  of  whom  In  some  States  upon  a  creditor's  objec- 

qualifies,  that  one  has  all  the  authority  tion,  sureties  may  be  required  of   the 

under  the  will  which  both  would  have  executor.     Smith  v.  Phillips,  54  Ala.  8. 

had  if  both   had  qualified.     Bodley  ?'.  If  there  are  infants  concerned,  the  court 

McKinney,    17    Miss.    339;  Phillips   v.  must  look    carefully  to  their  interests. 

Stewart,  59  Mo.  491.  Johns  v.  Johns,  23  Ga.  31.     Executors 

'  Mass.  Gen.  Stats,  c.  93,  §  i  ;  Wms.  pecuniarily  irresponsible  required  to  give 

Exrs.  529,  n.  by  Perkins.  security  notwithstanding  the  testator's 

'^  See  Mass.  Gen.  Stats,  c.  129;  Smith  request,  knowing  such  irresponsibility. 

V.  Phillips,  54    Ala.  8;  Clark  v.  Niles,  Freeman   v.    Kellogg,  4   Redf.  (N.  Y.) 

42  Miss.  460;  Atwell  v.  Helm,  7  Bush,  218. 

504.     In  Massachusetts  only  persons  of  ^  Fairfax    v.    Fairfax,    7    Gratt.    36 ; 

full  age  and  legal  capacity  need  certify  Langley  v.  Harris,  23  Tex.  564. 

their  assent ;  as  to   creditors   and   the  "■  Bankhead  v.  Hubbard,  14  Ark.  298- 
guardian  of  any  minor  interested  therein, 

191 


§    138  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

a  criterion  in  this  regard   than   the  rule  of  common  prudence 
would  allow.' 

A  few  States,  conforming  more  nearly  to  English  procedure, 
appear  to  treat  executors  differently  from  administrators,  re- 
quiring bonds  from  one  of  the  former  class  only  when  his  cir- 
cumstances are  precarious  or  the  interests  of  the  estate  render 
such  security  necessary.  In  each  State,  however,  the  legisla- 
ture prescribes  the  course  to  be  pursued  and  furnishes  a  rule 
for  judicial  action,  by  no  means  constant  and  uniform.^  But 
the  bond,  however  given,  and  whether  with  or  without  sureties, 
contemplates  commonly  a  due  administration  of  the  estate  to 
the  full  extent  of  paying  all  debts  and  legacies,  distributing  the 
residue  properly,  and  rendering  an  inventory  and  accounts  to 
the  court.' 

§  138-  Bonds  required  from  an  Executor;  Residuary  Legatee's 
Bond. —  Statutes  are  found  to  dispense  with  the  usual  bond 
when  the'  executor  is  residuary  legatee,  and  it  appears  that  so 
extensive  a  security  is  not  needful  for  the  protection  of  any  per- 
son interested  in  the  estate.  In  such  a  case  the  executor  may, 
at  his  option,  give  a  bond  with  condition  merely  to  pay  all  debts, 
and  legacies,  and  the  statute  allowances  to  widow  and  minors."* 

'  Wilson  -■.  Whitefiekl,    38  Ga.  269  ;  tameiitary  executor  domiciled  out  of  the 

Bowman  v.  Wootton,  8  B.  Mon.  67.  State  is  not  entitled  to  letters  without 

^  Mandeville  v.   Mandeville,  8   Paige,  giving  security  as  is  required  from  da- 

475.     As  to  the  bond  required  in  New  tive    testamentary    executors.      Davis, 

York  from  an  executor,  see  Senior  v.  Succession  of,  12  La.  Ann.  399;  Bobb, 

Ackerman,  2  Redf.   (N.    V.)   156;  Red-  Succession  of,  27  La.  Ann.  344. 
iield's   Surr.   Courts,    145;  Freeman  v.         The  South  Carolina  Act  of  1839  con- 

Kellogg,  4  Redf.  218;  Shields  z/.  Shields,  templates  a  bond  to  be  given  by  an  ex- 

60    Barb.   56.     An    executor  about    to  ecutor  for  purchases  made  by  him  at  his 

leave  the  State  should  give    security,  own    sale    of    his   testator's    projjerty. 

Wood  V.  Wood,  4  Paige,  299.     And  as  State  v.  Baskin,  i  Strobh.  35. 
to  the  husband  of  the   executrix  who         ^  See  Cunningham  v.  Souza,  i  Redf. 

misconducts  himself,  see  South  Carolina  Sur.  462.     It  must  be  in  statute  form  ; 

case  of  Powel  v.  Thompson,  4  Desau.  else  it  has  no  effect  except  as  a  common 

162.  law  bond.     77  Me.  157;  §  \i,o,post. 

In  Louisiana  an  executor  should  be         ■'Mass.  Gen.   Stats,  c.  93;  Duvall  v. 

required  on  the  expiration  of  his  year  to  Snowden,  7   Gill  &  J.  430;  Morgan  ?•. 

give  security,  or  in  default  thereof  dis-  Dodge,  44  N.  H.  255.     "As  many  per 

missed  and  a  dative  executor  appointed,  sons  have  been  ruined  by  giving  bonds 

Peale  z/.  White,  7  La.  Ann.  449.    A  tes  in  this  form,  we  think  it  the  duty  of 

192 


CHAP,   v.]      BONDS  OF  EXECUTORS  AND  ADMIX  ISTKATOKS. 


§    139 


The  advantage  of  such  a  bond  is  in  saving  him  the  labor  and 
expense  of  an  inventory,  reducing  the  penal  sum  to  the  minimum 
of  satisfymg  these  claimants  and  reserving  all  evidence  of  assets 
to  himself ;  and  the  law  thus  indulges  the  residuary  legatee,  in- 
asmuch as  it  is  no  concern  of  others  what  may  be  the  bulk  of 
the  fortune  he  acquires,  provided  their  demands  arc  satisfied. 
But  the  disadvantage  is  that  such  a  bond  conclusively  admits 
assets  sufficient  for  the  payment  of  all  debts,  legacies,  and  al- 
lowance in  full,  binding  the  executor  and  his  sureties  absolutely 
in  the  penal  sum,  to  pay  accordingly,  even  though  the  estate 
should  prove  insolvent  ;  and  hence  an  executor  who  does  not 
feel  certain  when  he  qualifies  that  the  assets  are  ample  for  all 
such  demands,  should  qualify  in  common  form,  so  as  to  limit  his 
liability  by  the  inventory,  as  returned  to  the  court,  and  the 
actual  assets.' 


§  139-    Bonds  required  from  an  Administrator;   English  Rule. — 

The  practice  of  taking  bonds  from  administrators,  as  distinguished 


judges  of  probate  always  to  discourage 
this  kind  of  security,  and  to  take  special 
care  that  no  such  bond  is  received  in 
any  case  where  it  is  not  beyond  doubt 
that  the  estate  is  solvent."  Per  curiam 
in  Morgan  v.  Dodge,  ib.  And  see  Wms. 
Exrs.  543;  2  Stra.  1137. 

'  Stebbins  v.  Smith,  4  Pick.  97  ;  Col- 
well  V.  Alger,  5  Gray,  67 ;  Duvall  v. 
Snowden,  7  Gill  &  J.  430.  Where  the 
bond  to  pay  legacies,  etc.,  is  given,  and 
one  sues  to  recover  a  legacy,  the  plain- 
tiff need  give  no  proof  except  this  bond 
that  the  executor  has  assets  sufficient 
in  his  hands.  Jones  v.  Richardson,  5 
Met.  247.  Such  a  bond  binds  sureties 
as  well  as  principal  to  the  full  penal 
sum  named,  regardless  of  the  amount 
of  assets  in  the  estate.  Kreamer  v. 
Kreamer,  52  Kan.  97.  And  notwith- 
standing some  controversy,  it  seems  the 
better  opinion  that  the  giving  of  such  a 
bond  does  not  vest  the  assets  in  the  re- 
siduary legatee  or  close  the  administra- 
tion, in  any  such  sense  as  to  prejudice 
13  IC 


legatees  and  creditors.  Ib. :  Lafferty  v. 
Savings  Bank,  76  Mich.  35.  Nor  can 
such  a  bond  be  cancelled  or  surrendered 
by  the  executor  and  the  bond  in  com- 
mon form  substituted,  long  after  it  was 
time,  in  the  ordinary  course,  to  file  an 
inventory.  Alger  v.  Colwell,  2  Gray, 
404.  The  giving  of  bond  to  pay  debts 
and  legacies  does  not,  as  a  rule,  dis- 
charge the  lien  on  the  testator's  real 
estate  for  payment  of  debts,  as  the  Mas- 
sachusetts statute  provides.  Mass.  Gen. 
Stats,  c.  93,  §  4.  And  see  Moody  v. 
Davis,  67  N.  H.  300.  See  Cleaves  v. 
Dockray,  67  Me.  1 18,  as  to  the  effect  of 
a  bond  given,  of  this  character,  but  not 
in  proper  conformity  to  the  statute. 

A  bond  given  by  an  executrix  who 
takes  a  life  interest  in  the  personal  prop- 
erty administered  upon  is  no  continuing 
security  to  those  entitled  in  remainder 
for  their  interest  in  the  property ;  but 
on  due  settlement  of  the  estate  and  final 
account  in  the  probate  court,  with  dis- 
tribution, the  condition  of  the  bond  is 


§    139  EXECUTORS    AND    ADMINISTRATORS.  [PART  II, 

from  executors,  must  have  prevailed  in  the  English  spiritual 
courts  long  before  the  first  English  colony  was  planted  in 
America.  For  the  statute  21  Hen.  VIII.  c.  5,  §  3,  directs  the 
ordinary  to  take  surety  on  granting  administration.'  Before  the 
transfer  of  this  spiritual  jurisdiction  to  the  new  courts  of  pro- 
bate in  England,  statute  22  &  23  Car.  II.  c.  10,  served  from  167 1, 
and  for  nearly  two  centuries,  to  fully  detail  what  should  be  the 
form  and  condition  of  this  administration  bond ;  the  ordinary 
being  directed  to  take  "  sufficient  bonds  with  two  or  more  able 
sureties,  respect  being  had  to  the  value  of  the  estate,  in  the 
name  of  the  ordinary."  The  condition  herein  imposed  upon  the 
administrator  was,  to  return  a  true  inventory  to  the  court  at  or 
before  a  specified  date  ;  to  administer  the  estate  well  and  truly  ; 
to  make  a  true  and  just  account  of  his  administration  ;  to  de- 
liver and  pay  the  residue  as  the  judge  should  appoint  ;  and  to 
render  up  the  letters  in  court,  should  a  will  afterwards  be  pre- 
sented.- Under  the  new  court  of  probate  act,  20  &  21  Vict. 
c.  j'jy  every  person  to  whom  administration  is  granted  must  give 
bond  to  the  probate  judge,  in  a  penal  sum  double  the  amount 
under  which  the  estate  and  effects  shall  be  sworn  ;  but  a  wider 
judicial  discretion  is  allowed  than  under  the  former  statute,  so 
that  the  penal  sum  may  be  reduced,  and  the  responsibility  of 
sureties  divided  ;  moreover,  the  requirement  of  a  surety  or  sure- 
ties, as  well  as  the  general  form  and  condition  of  the  bond,  are 
matters  likewise  confided  to  this  court. ^ 

satisfied.  Saile  v.  Court  of  Probate,  C.  D.,  and  E.  F.  (the  administrator  and 
7  R.  I.  270.  his  sureties)  bind  themselves  jointly  and 
'  Wms.  Exrs.  7th  Eng.  ed.  529.  severally  unto  G.  H.,  the  judge  of  the 
^  Wms.  Exrs.  529,  530,  citing  the  Ian-  court  of  probate,  in  the  penal  sum 
guage  of  this  act.  named,  to  be  paid  to  the  said  G.  H., 
'Act  20  &  21  Vict.  c.  77,  §§80-82;  or  to  the  judge  of  the  said  court,  for  the 
Wms.  Exrs.  531-533.  The  form  of  ad-  time  being;  "for  which  payment  well 
ministration  bond  required  by  the  pres-  and  truly  to  be  made,  we  bind  ourselves 
ent  rules  of  the  English  probate  court  and  of  us  for  the  whole,  our 
may  be  seen  in  Wms.  Evs-  53--  The  heirs,  executors,  and  administrators 
bond  is  expressed  after  the  usual  form  firmly  by  these  presents.  Sealed  with 
of  bonds,  beginning  "Know  all  men  by  our  seals.  Dated  the  day  of  , 
these  presents,"  etc.;  expressing  the  A.  D.  18  ."  The  condition  then  fol- 
date  ;  stating  first  the  penal  sum  to  be  lows,  preceding  the  execution ;  this  con- 
paid  and  then  the  condition,  and  being  dition  being  in  substance  for  the  most 
signed  and  sealed  at  the  end.     A.  B.,  part  like  that  prescribed  in  statute  22  & 

194 


CHAP,   v.]     BONDS  OF   EXECUTORS   AND   ADMINISTRATORS.         §    I  39 

The  English  court  of  probate  act,  it  is  perceived,  does  not  in- 
sist upon  sureties  in  an  administration  ;  and  there  are  instances 
in  which  the  court  has  accordingly  dispensed  with  them  ;  though 
only  by  way  of  exception  to  the  rule,  and  at  all  events  so  as  to 
insist  still  upon  a  bond.'  Where  the  administrator  is  out  of 
England,  the  sureties  must  usually  be  resident  ;  a  rule  relaxed 
latterly,  however.^  If  the  husband  of  a  married  woman  refuses 
to  execute  the  administration  bond  with  her,  the  court  will  al- 
low administration  to  her  and  permit  the  bond  to  be  executed 
by  a  third  person  ;  ^  and  in  other  instances  a  third  person  may 
intervene  and  furnish  security.*  Under  a  grant  of  limited  ad- 
ministration, a  bond  is  sometimes  taken  in  a  penal  sum  merely 
nominal.5 

Letters  of  administration  will  not  issue  to  a  creditor  except 
on  condition  of  his  entering  into  a  bond  to  administer  ratably  ; '' 
and  as  to  a  stranger  appointed,  the  court  will  require  special 
security,  according  to  circumstances.^  Where  there  has  been 
an  administration  pendente  lite,  and  the  minor  on  coming  of  age 
takes  upon  himself  the  trust,  he  must  give  security  as  would 

23   Car.    II.  c.   10,   supra,   but  worded  vice  in  the  case  of  non-residents.     As 

differently,  and  varying  in  some  material  to  the  justification  of  securities  to  the 

respects.     As  usual  in  bonds,  this  por-  administration    bond,    this     is    at    the 

tion  begins,  "  The  condition  of  this  ob-  court's   discretion,    but    with    qualifica- 

ligation  is  such  that  if  the  above-named  tions  stated   in    Wms.    Exrs.    545.     A 

A.  B.  (reciting  A.  B.   as  administrator  husband  residing  abroad,  and  adminis- 

on  the  estate  of  I.  J.  in  addition)  do  "  tering  on  his  deceased  wife's  estate,  has 

according  to  the  condition  next  stated  been  required  at   the  instance  of  cred- 

in  detail,   "then   this   obligation  to   be  itors   to  give   resident  security.     Noel, 

void  and  of  none  effect,  or  else  to  re-  Goods  of,  4  Hagg.  207. 

main  in  full  force  and  virtue."  ^Sutherland,  Goods  of,  31    L.  J.,  P. 

'Cleverly  v.  Gladdish,  2   Sw.  &  Tr.  M.  &  A.  126. 

335 ;  Po-wis,  Goods  of,  34  L.   J.,  P.  M.  *  See   Ross,  Goods   of,  L.  R.  2  P.  D. 

&  A.  55.     The  court  allows  a  bond  with  274,  where  the  bond  was  thus  increased 

one  surety  under  some   circumstances,  while    the     administrator     had     gone 

Bellamy,  Goods  of,  L.  T.  33  N.  S.  71.  abroad. 

^  Cf.  O'Byrne,  Goods  of,  i  Hagg.  316 ;  '  Bowlby,  Goods  of,  45  L.  J.,  P.  D.  A. 

Hernandez,  Goods    of,  L.    R.  4    P.  D.  lOO. 

229 ;  Houston,  Goods  of,  L.  R.   i  P.  &  '"  Brackenbury,  Goods   of,    25  W.   R. 

D.  85  ;  with    Reed,  Goods  of,    3  Sw.  &  698  ;  Wms.  Exrs.  443. 

Tr.  439 ;  Wms.  Exrs.  544.     The  reason  ''  Act  20  &  21  Vict.  c.  77,  §  73  ;  Wms. 

of  this  change  is  that  common-law  prac-  Exrs.  446,  447. 
tice  now  permits  of  a  substituted  sei- 


§    I40  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

the  administrator  in  the  first  instance.'  In  cases  of  administra- 
tion not  within  the  statute  21  Hen.  VIII.,  or  where  the  de- 
ceased died  testate,  a  bond  is  conditioned  for  the  due  payment 
of  debts  and  legacies;-  and  under  statute  20  &  21  Vict.  c.  ^y, 
rules  of  court  provide  for  framing  peculiar  bonds  appropriate  to 
the  grant  poidoitc  lite,  and  other  limited  or  special  administra- 
tions ;  two  sureties  being  here  required,  as  elsewhere,  in  double 
the  amount  of  propert}'  to  be  administered  upon.  The  registrar 
inquires  into  the  responsibility  of  the  sureties  offered  by  an  ad- 
ministrator, and  attests  the  bond  in  token  of  its  sufficiency.^ 

§  1 40.  Bonds  required  from  aii  Administrator ;  American  Prac- 
tice.—  American  practice  in  respect  of  probate  bonds  is  based 
upon  English  requirements  under  the  earlier  statutes  cited  in 
the  preceding  section  ;  and  while,  in  all  or  most  States,  the  form 
of  bond  is  carefully  prescribed,  as  seems  quite  appropriate  to 
our  statute  tribunals  which  a  legislature  invests  with  probate 
jurisdiction,  Stat.  22  &  23  Car.  II.  c.  10,  appears  to  have  sup- 
plied the  model.  Thus,  in  Massachusetts,  the  bond  of  an 
original  administrator,  or  of  an  administrator  with  the  will  an- 
nexed, binds  him  to  return  an  inventory  within  the  time  desig- 
nated by  law ;  to  administer  according  to  law  all  the  personal 
estate  and  the  proceeds  of  all  real  estate  sold  for  the  payment 
of  debts ;  to  render  regular  accounts  of  his  administration ;  to 
pay  any  balance  remaining  in  his  hands  upon  the  settlement  of 
his  accounts  to  such  persons  as  the  court  shall  direct,  and  to 
deliver  his  letters  of  administration  into  the  probate  court  in 
case  any  will  of  the  deceased  is  hereafter  proved  and  allowed.'* 
For  administrators  with  the  will  annexed,  and  likewise  adminis- 
trators dc  bonis  non  with  the  will  annexed,  a  similar  form  is 
prescribed,  but  with  apj^-opriate  allusions  added  to  the  payment 
of  "legacies." 5  A  special  administrator's  bond  is  conditioned 
to  return  an  inventory  within  the  specified  time ;  to  account  on 

'  Wms.  Exrs,  545  ;  Abbott  v.  Abbott,  "^  lb.     See  Casoni  v.  Jerome,  58  N.  Y. 

2  Phillim.  578.  315.     The  bond  of  such  administrators 

^2  Stra.  1 137.  must  conform  to  the  peculiar  conditions 

3  Wms.     Exrs.    548,    citing    rules    of  of  a  will,  otherwise  legatees  may  lose 

English  probate  court.  their  rights  to  sue  upon  it.     Small  v. 

■*  Mass.  Gen.  Stats,  c.  94.  Commonwealth,  S  I'enn.  St.  loi  ;  Fra- 

196 


CHAP,   v.]     BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.         §    1 40 

oath  whenever  required  for  all  the  personal  property  of  the  de- 
ceased that  shall  be  received  by  him  in  such  capacity ;  and  to 
deliver  the  same  to  whoever  shall  be  appointed  executor  or 
administrator  of  the  deceased,  or  to  such  other  person  as  shall 
be  lawfully  entitled  to  receive  the  same.'  In  most  of  our 
States,  local  statutes  relative  to  administration  will  be  found  to 
suggest  the  varying  forms  appropriate  to  different  kinds  of 
administration,  even  though  no  precise  form  be  specified ;  and 
probate  tribunals  should  see  that  all  probate  bonds  conform  to 
law,  and  are  correctly  expressed.^  Bonds  limited  in  expression 
are  not  favored  in  the  United  States,  any  more  than  limited 
grants  of  administration.  But  as  administrators  do  not  ex  officio 
dispose  of  real  estate,  it  is  sometimes  provided  that  an  adminis- 
trator may  be  exempted  from  giving  bonds  for  the  proceeds  of 
such  property,  except  where  authorized  to  make  such  sales.^ 
The  public  administrator  has  the  option  in  some  States  either 
to  furnish  a  separate  bond  for  every  estate  which  he  may  be 
called  upon  to  administer,  or  a  general  bond  for  the  faithful 
administration  of  all  estates  on  which  administration  is  granted 


zier  ?'.  Frazier,   2    Leigh,  642.     But  cf.  "administer    the    estate    according   to 

Judge  of  Probate  v.  Claggett,  36  N.  H.  law"  has  been  construed  to  include  ad 

381.  ministration  according  to  a  will  already 

'lb.   §    7.     Administrators  poidente  admitted  to  probate.     Judge  of  Probate 

lite   usually   give   bonds,  and  the  legal  v.    Claggett,    36    N.    H.    381.     But  see 

validity  of  such  bonds  is  beyond  doubt.  §146, /(«/*. 

i^t?  Colvin,  3  Md.  Ch.  278  ;  Bloomfield  z/.  ^  Where  a  statute  was  precise  with 
Ash,  4  N.  J.  L.  314.  Notwithstanding  respect  to  the  several  forms  of  bond 
the  exemption  of  executors  favored  in  and  the  bond  used  in  the  probate  office 
New  York,  whoever  administers  with  contained  omissions  or  additions  of  im- 
will  annexed  must  give  bond,  whether  portance,  it  was  pronounced  fatally  de- 
legatee,  next  of  kin,  widow,  or  creditor,  fective  as  a  statute  bond.  Frye  ?■. 
Brown,  Ex  parte,  2  Bradf.  (N.  Y.)  22.  Crockett,  77  Me.  157.  A  bond  which 
As  to  construing  statute  provisions  re-  does  not  conform  to  statute  cannot  be 
specting  the  several  conditions  of  an  sued  against  the  surety  of  the  executor 
administrator's  bond,  see  Lanier  v.  or  administrator  in  the  name  of  the 
Irvine,  21  Minn.  447  ;  Hartzell  v.  Com-  successor  of  the  judge  to  whom  it  was 
monwealth,  42  Penn.  St.  453;  Ordinary  given.     lb. 

7'.  Smith,   14  N.  J.   L.  479.     As  to  the  ^  Mas.s.  Gen.  Stats,  c.  94,  §6;  Hugh- 
condition  to  surrender  the  letters  in  case  lett   z*.  Hughlett,  5  Humph.  453.     And 
a  will  shall  be  proved,  etc.,  see  Hunt  v.  see  Salyer  v.  State,  5  Ind.  202. 
Hamilton,  9  Dana,  90.     A  condition  to 

197 


§  HI 


EXECUTORS    AND    ADMINISTRATORS. 


[part  II. 


to  him  ;  and  in  either  case  with  conditions  expressed  appropriate 
to  his  peculiar  functions.' 


§  141.  Probate  Bonds;  How  Taken.  —  Administration  bonds, 
as  American  codes  usually  provide,  must  be  given  by  the  ad- 
ministrator, with  at  least  two  sufficient  sureties,  in  such  penal 
sum  as  the  court  shall  direct ;  double  the  estimated  value  of  the 
estate  to  be  administered  serving  as  the  usual  basis  for  fixing 
the  amount.^  In  this  and  various  other  respects,  the  same 
holds  generally  true  of  executors'  bonds.  A  discretion  as  broad 
as  that  conferred  on  the  new  probate  court  of  England  by  Par- 
liament is  not  usually  exercised  by  the  probate  courts  in  this 
country  as  to  administration  bonds.  The  register  or  clerk  in 
some  States  attends  to  the  qualification  by  bond ;  more  com- 
monly, however,  the  judge,  as  to  the  main  particulars  of  security, 
his  approval  being  written  at  the  foot  of  the  bond  in  token  that 
the  administrator  has  fully  qualified,  and  the  letters  being  mean- 


'  Mass.  Gen.  Stats,  c.  95,  §  7.  See 
Buckley  v.  McGuire,  58  Ala.  226 ;  State 
V.  Purdy,  67  Mo.  89.  In  Alabama  the 
official  bond  of  the  sheriff  becomes  an 
administration  bond,  when  the  adminis- 
tration of  an  estate  is  committed  to  him 
ex  officio,  and  he  and  his  sureties  are 
rendered  liable  accordingly.  Payne  v. 
Thompson,  48  Ala.  535. 

-  See  local  codes  ;  Clarke  v.  Chapin, 
7  Allen  (Mass.)  425  ;  Tappan  v.  Tap- 
pan,  4  Fost.  (N.  H.)  400;  Bradley  v. 
Commonwealth,  31  Penn.  St.  522;  At- 
kinson V.  Christian,  3  Graft.  448 ;  Kidd's 
Estate,  Myrick  (Cal.)  239.  And  see, 
as  to  Louisiana  rule,  Soldini  v.  Hyams, 
15  La.  Ann.  551  ;  Ferray's  Succession, 
31  La.  Ann.  727.  There  are  circum- 
stances (as  in  ancillary  administration 
for  some  particular  purpose)  where  a 
small  penal  sum  is  appropriate.  Piquet, 
Ke,  5  Pick.  65.  The  security  required 
should  be  for  no  more  property  than 
that  on  which  administration  is  granted 
in  the  State.  Normand  71.  Grognard, 
17  N.  J.  Eq.  425.  In  administration 
Je  botiis  no)t  double   the   amount  of  un 


administered  estate  is  the  proper  sum. 
Oakey's  Goods,  (1896)  P.  7.  See  as  to 
taking  a  bond  without  sureties,  Jones  v. 
Gordon,  2  Jones  Eq.  352.  A  disputed 
claim  not  probably  enforceable  may  be 
ignored  in  fixing  the  amount.  3  Dem. 
427.  Or  property  transferred  by  the 
decedent  fraudiilently  or  otherwise.  3 
Dem.  548.  Where  a  will  gives  the 
executor  full  power  to  deal  with  real  as 
well  as  personal  estate,  the  penalty  of 
his  bond  should  be  reckoned  accord- 
ingly. EUis  V.  Witty,  63  Miss.  117. 
The  local  statute  sometimes  permits 
the  penalties  to  be  reduced  under  an 
administration  bond  [e.  g.  with  will  an- 
nexed) if  the  interested  parties  assent. 
Or  even  so  that  sureties  may  be  dis- 
pensed with.  See  3  Dem.  53 ;  supra 
(as  to  executors),  §  137. 

In  some  States  the  court  or  register 
is  liable  in  damages  if  he  neglects  to 
take  a  bond  according  as  the  statute 
directs.  McRae  v.  David,  5  Rich.  (S.  C.) 
Eq.  475;  Penn.  Act,  March  15,  1832, 
§  27. 


198 


CHAr.    v.]     BOXns  OI-   KXFX  IT^KS   and   ADMIXISTKATORS.         §    I42 

while  withheld  by  the  register.'  The  bond  of  an  administrator 
or  executor  runs  in  some  States  to  the  State ;  in  others,  to  the 
judge  of  probate  and  his  successors,  as  in  the  statute  22  Car.  II. 
c.  10.^  If  one  who  has  applied  to  administer  does  not  qualify 
with  sureties  within  a  reasonable  time,  it  is  the  duty  of  the 
court  to  appoint  another  ;  ^  and  the  office  of  administrator  is  not 
filled  until  the  bond  is  given.-*  But  where  the  administrator 
fully  qualifies,  giving  bond  according  to  law,  the  decree  of  the 
court  may  be  considered  his  sufificient  appointment  whether  he 
receives  his  formal  letters  or  not ;  for  the  letters  issue  as  of  the 
same  date,  and  if  not  actually  delivered,  are  to  be  deemed  ready 
for  delivery.5 

A  probate  bond  which  divides  up  the  penal  sum  among  the 
sureties  is  not  void ;  but  this  form  of  bond  appears  to  be  re- 
garded with  disfavor  by  American  courts  in  the  absence  of 
legislation  which  expressly  sanctions  it,  like  the  English  act 
now  in  force.^ 

§  142.  Probate  Bonds;  Irregularities,  etc.,  attending  Execution, 
How  far  Available. —  Courts  disincline  to  treat  a  probate  bond 

'  Mass.  Gen.  Stats,  c.  loi  ;  Austin  v.  chusetts  not  void  for  that  cause,  but 
Austin,  50  Me.  74;  supra,  §  118.  Ap-  binding  on  the  obligors  and  sufficient  to 
proval  in  writing  is  not  an  essential  in  give  effect  to  the  executor's  acts.  Bald- 
all  States.     Jones  z/.  Dixon,  21  Mo.  538.  win  v.  Standish,  7  Cush.  207.     But  the 

^Johnson  v.   Fuquay,    i    Dana,  514;  court  further  intimated  that,  had  appeal 

Vanhook    v.   Barnett,  4   Dev.   L.   268.  been  made  from  the  decree  of  the  judge 

In  Missouri  the  approval  of  the  court  is  of  probate  approving  the  bond  in  that 

not  indispensable  to  the  validity  of  an  fonn,  such  a  departure  from  the  usual 

administration  bond.     State  v.  Farmer,  course  of   proceeding  would  not    have 

54  Mo.  539.  been    sanctioned.     lb.     With    the    in- 

^  Crozier  v.  Goodwin,  i  Lea,  125.  creasing  wealth  of  this  country,  and  the 

'•  Feltzz/.  Clark,  4  Humph.  79 ;  O'Neal  growing  value  of  estates  brought  neces- 

V.  Tisdale,  12  Tex.  40.  sarily  into  the  probate  court  for  settle- 

'  States.  Price,  21  Mo.  434.     A  judge  ment,  it  .seems  to  this  writer  desirable 

cannot   reject   arbitrarily  the  bond  of-  that  bonds  of  this  character  should  be 

fered,  but    he   may  require   sureties  to  authorized,   as  they  now  so  frequently 

justify  if  there  is  reasonable  doiibt  of  are  in  the  case  of  public  officials.     One 

their  responsibility.     48  Mich.  31S.  should  not   be  asked  to  risk  utter  ruin 

*  Act  20  &  21  Vict.  c.  77,  cited  supra,  for  the  sake  of  a  friend.     Companies 
Hence,  an  executor's  bond,  approved  by  organized  for  this  surety  business  are 
the  judge,  in  which  the  sureties  are  each  desirable,  and  may  now  (1899)   be  em- 
bound  in  half  the  sum  for  which  the  ployed  in  place  of  private  sureties, 
principal  is  bound,  was  held  in  Massa- 

199 


§    142  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

as  void,  to  the  detriment  of  an  estate,  by  reason  of  informalities 
and  omissions  attending  its  execution,  provided  a  regular  execu- 
tion was  obviously  intended  '  by  principal  and  sureties.  Thus, 
inserting  the  name  of  the  intestate  in  a  blank,  where  that  of 
the  administrator  should  be,  has  been  treated  as  a  mistake 
apparent  on  the  face  of  the  instrument ;  and  omissions  of  this 
sort  are  sometimes  supplied  in  the  blank  by  construing  the  de- 
cree of  appointment  and  the  bond  together.^  Even  where  the 
principal  and  his  sureties  executed  a  blank  bond,  the  qualifica- 
tion thereon  and  appointment  are  held  good  until  revocation  of 
the  letters; 3  and  though  the  executor's  or  administrator's  bond 
were  accepted  without  sureties  or  upon  ill  compliance  with  the 
statute,  the  appointment  itself  may  be  valid,  as  made  de  facto 
and  voidable  only.-*  An  administration  bond  is  not  void  because 
its  condition  varies  from  that  required  by  statute,  when  it  was 
voluntarily  given,  and  is  not  made  void  by  statute,  and  prescribes 
no  more  than  the  law  requires  ;5  though  the  omission  of  suitable 
conditions  therein  may  rule  out  remedies  for  a  corresponding 
breach,  especially  as  against  the  sureties.^  Obligors  on  a  pro- 
bate bond  who  have  executed  it  and  suffered  the  bond  to  go 
upon  record,  may,  on  general  principles,  be  estopped  from  after- 
wards denying  its  validity  or  availing  themselves  of  irregulari- 
ties, or  setting  up  their  private  arrangements  as  to  the  manner 


*  Moore  v.  Chapman,  2  Stew.  (Ala.)  is  quite  common ;  nor  does  this  course 

466.     See  also  Luster  z/.  Middlecoff,  8  appear  objectionable. 

Gratt.  54.  "•  Jones  v.  Gordon,  2  Jones  (N.  C.) 

^  State  V.   Price,    15    Mo.    375.     But  Eq.  352;  Mumford  v.   Hall,   25   Minn, 

judgment  at  law  upon  a  blank  bond  is  347;  lierriman  ?'.  Janney,  31  La.  Ann. 

refused.     Cowling  v.   Justices,  6  Rand.  276 ;  Maxwell,  /vV,  37  Ala.  362.     For  a 

349.  probate  bond  is  only  the  "  several  "  obli- 

^  Spencer  v.  Cahoon,  4  Dev.  L.  225.  gation  of  sureties  and  hence  not  binding 

For   sureties   to    execute   for    a    blank  on  them   where  the  principal   did   not 

amount    imports    an    authority   to    the  sign.     See  loi  Cal.  125. 

principal,  to    whose  care  they  confide  '  Ordinary  ?-.  C'ooley,  30  N.  J.  L.  179. 

the  bond,  to  fill  in  such  a  penal  sum  as  ''  See    Small    71.    Commonwealth,    S 

the  court  may  require.     Such  a  practice,  Penn.    St.    loi  ;  Frazier   v.    Frazier,    2 

however,  is  exceedingly  careless,  and  no  Leigh,  642  ;  Roberts  v.  Calvin,  3  Gratt. 

probate  court  should  sanction  it.    Leav-  358;  Rose  7/.  Winn,  51  Tex.  545;  Bur- 

ing  the  date  of  the  bond  blank,  however,  nett  v.  Nesmith,  62  Ala.   261;  Frye  z/ 

in  order  that  the  principal  may  fill  it  up  Crockett,  77  Me.  157  ;  §  140. 
according  to  the  date  of  prol)ate  decree, 

200 


CHAP.  V.J  BONDS  OF  EXECUTORS  AXD  ADMINISTRATORS. 


in  which  the  bond  should  be  filled  out  and  used,  to  the  injury 
of  innocent  interested  parties  who  were  led  to  rely  upon  the 
security, '  especially  where  they  themselves  had  not  been  misled 
to  their  own  injury.  - 

But  alterations  after  execution,  and  irregularities  of  injurious 
effect,  to  which  the  bondsmen  themselves  were  not  privy,  but 
rather  they  to  whom  the  security  was  given,  and  which  the  bonds- 
men cannot  be  said  to  have  adopted  by  open  acts  or  inexcusable 
silence,  may  release  them  from  responsibility.  And  in  such 
connection  a  judge  or  register  is  greatly  to  be  blamed  who  changes 
in  material  respects  or  mutilates  the  bond  submitted  to  him, 
without  the  knowledge  of  all  the  parties  executing  it ;  ^  or  who, 
without  assent  of  the  sureties,  directs  that  the  bond  one  gives 
as  special  administrator  of  an  estate  shall  stand  over  for  his  bond  as 


'  Franklin  v.  Depriest,  13  Gratt.  257  ; 
Cohea  v.  State,  34  Miss.  1 79 ;  Field  v. 
Van  Cott,  s  Daly  (N.  Y.)  308  ;  Wolff  v. 
Schaeffer,  74  Mo.  154.  One  who  signs 
the  probate  bond  may  retract,  if  others 
intended  do  not  sign,  or  the  principal 
fails  to  make  good  his  promises,  but  he 
must  do  so  before  the  bond  is  returned 
and  the  court  and  innocent  parties  have 
placed  reliance  upon  it.  4  La.  Ann. 
545,  10  La.  Ann.  612.  Not  even  a 
surety's  allegation  that  he  signed  on 
condition  that  another  surety  should  be 
procured,  and  that  the  judge  of  probate 
was  so  informed,  can  avail  him,  where 
there  is  no  evidence  that  the  bond  was 
delivered  as  an  escrow.  Wolff  v. 
Schaeffer.  74  Mo.  154.  And  still  less, 
where  the  judge  was  not  informed. 
Berkey  v.  Judd,  34  Minn.  393.  But  qu. 
whether,  in  States  where  two  sureties  to 
a  probate  bond  are  requisite,  the  surety 
may  not  presume  that  the  judge  will  not 
accept  the  bond  unless  another  surety 
executes.  It  is  plain,  however,  that  one 
who  executes  as  surety  a  probate  bond, 
without  ascertaining  in  what  manner 
blanks  are  filled,  or  what  other  signa- 
tures added  before  the  bond  becomes 
approved  and  filed,  trusts  his  principal, 
in  many  instances,  farther  than  prudence 

20 


warrants.  Sureties  on  a  public  admin- 
istrator's bond  cannot  set  up  that  his 
appointment  was  irregular.  16  Leai 
321.  In  Louisiana,  where  the  amount 
is  left  blank  in  the  bond,  it  is  fixed  by 
the  code  at  one-fourth  over  the  inven- 
tory, bad  debts  deducted.  35  La.  Ann. 
920.  A  bond  with  one  surety  where 
the  law  required  two  is  not  void.  68 
Ala.  107. 

^  Veach  v.  Rice,  131  U.  S.  293. 

^  In  Howe  v.  Peabody,  2  Gray,  556, 
a  probate  bond  executed  by  a  principal 
and  two  sureties  was  altered  by  the 
judge  of  probate  so  as  to  increase  the 
penal  sum.  After  this  alteration,  which 
was  made  with  the  knowledge  of  the 
principal,  but  not  of  the  sureties,  the 
same  bond  was  executed  by  two  addi- 
tional sureties,  who  did  not  know  the 
circumstances  of  the  alteration,  and  was 
then  approved  by  the  judge.  It  was 
held  that  the  bond  was  binding  upon 
the  principal,  but  not  upon  any  of  the 
sureties.  Howe  v.  Peabody,  2  Gray, 
556.  Otherwise  where  supposed  sure- 
ties were  added,  who  cannot  legally  be 
held,  but  upon  whom  the  original  sure- 
ties themselves  had  placed  no  reliance. 
Veach  v.  Rice,  131  U.  S.  293. 


§    144  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

general  administrator."  It  follows  that  a  bond  may,  under  pe- 
culiar circumstances,  bind  the  principal  but  not  the  sureties;^ 
also  that  the  judge  in  whose  name  the  bond  runs  should  regard 
himself  as  obligee  in  the  interest  and  for  the  protection  of  all 
parties  interested  in  the  estate,  and  sanction  nothing,  out  of 
complaisance  to  his  appointee,  to  impair  the  security  required  in 
their  behalf.  And  furthermore  the  judge  should  see  that  the 
bond  conforms  to  the  law  in  its  provisions. 

§  143.  "Whether  a  Probate  Bond  may  bind  as  a  Common-la'w 
Bond.  —  It  has  been  ruled  that,  though  the  appointment  of  an 
administrator  be  void  for  want  of  jurisdiction,  inasmuch  as  the 
intestate  neither  resided  nor  left  assets  within  the  county  at  the 
time  of  death,  a  bond  given  by  the  administrator,  while  deriving 
no  validity  from  the  statute,  may  be  good,  nevertheless,  at  com- 
mon law. 3  And  the  fact,  that  one  who  was  improperly  appointed 
acts  under  the  letters  granted  to  him,  is  held  to  render  him  and 
his  sureties  liable  on  their  bond  to  the  parties  interested  in  the 
estate,  on  general  princiijle."* 

§  144.  Sufficiency  of  Probate  Bonds,  as  to  the  Security  and  the 
Parties  offered. —  It  is  not  of  itself  a  sufficient  objection  to  sure- 
ties offered,  that  they  do  not  reside  in  the  count}^  where  letters 
are  applied  for.'  Non-residents,  moreover,  may,  in  some  parts 
of  the  United  States,  be  taken  as  sureties,  the  court  exercising 
its  own  discretion  as  to  their  sufficiency ;  ^  though  the  codes 
elsewhere  expressly  require  that  the  indispensable  sureties  shall 
be  inhabitants  of  the  State  ;  ^  and  the  question,  whether  local 
practice  of  the  common-law  courts  permits  of  a  substituted  ser- 
vice or  not,  in  the  case  of  non-residence,  may  be  thought  matc- 

'  Fisher,  Re,  15  Wis.  511.  good   as   a  voluntary  bond.      .State  v. 

=^Howe  V.  Peabody,  2  Gray,  556.  Creusbauer,  68  Mo.  254. 

^McChord  v.  Fisher,  13  B.  Mon.  193.  ^  Barksdale  v.  Cobb,  16  Ga.  13. 

*  Shaker's  Appeal,  43  Penn.   St.  83;  ''Jones  v.  Jones,  12  Rich.  L.  623. 

Cleaves  z/.  Dockray,  67  Me.  118.     And  'Mass.  Gen.  Stats,  c.  loi,  §  12.    There 

see  Frye  v.  Crockett,  77  Me.  157.     An  may  be  a  third  person,  an  inhabitant  of 

administrator's  bond,    though    not    ap-  another  State,  if  two  sureties  are  resi- 

proved  by  the   probate  court,  may  be  dent.     Clarke  v.  Chapin,  7  Allen,  425. 

202 


CHAP,   v.]     BONDS  OF  EXECUTORS  AND   ADMINISTRATORS.         §    1 45 

rial  in  this  connection.'  There  are  local  statutes  which  prohibit 
certain  parties — attorneys,  and  counsel,  for  instance  —  from  be- 
ing sureties  on  administration  bonds  :  a  provision,  however,  held 
merely  directory,  and  so  as  not  to  vitiate  a  bond,  approved  by 
the  court,  upon  which  one  of  the  prohibited  class  is  placed,  nor 
to  justify  a  party  so  executing  in  pleading  exemption.^  Sureties 
are  usually  permitted  to  prove  their  sufficiency  under  their  own 
oath,  as  in  the  qualifying  of  bail  ;  and  it  then  devolves  upon  the 
opponent  to  show  the  insufficiency  by  cross-examination  or  evi- 
dence produced  aliunde^' 

In  American  practice,  sureties,  to  save  themselves  trouble, 
frequently  execute  a  probate  bond  in  anticipation  of  the  execu- 
tor's or  administrator's  appointment ;  their  principal  holding  the 
instrument  until  ready  to  qualify.  Such  a  bond  should  be  drawn 
up  with  an  ample  penal  sum,  and  the  principal  should  come  pre- 
pared to  establish  its  sufficiency  to  the  satisfaction  of  the  court ; 
and  care  should  be  taken,  moreover,  that  no  material  change  is 
made  in  the  bond  without  reference  anew  to  all  the  sureties.-* 

§  145-  Co-Executors  and  Co- Administrators  ;  Joint  and  Separate 
Bonds. —  On  a  joint  probate  bond,  co-executors  or  co-administra- 
tors become,  as  a  rule,  jointly  liable  as  sureties  for  the  acts  and 
defaults  of  one  another  ;5  and  jointly  as  principals,  moreover,  to 
indemnify  the  surety  who  has  been  subjected  to  liability  for  the 
default  of  one  of  them  during  the  continuance  of  the  joint  of- 
fice.^ And  though  one  or  more  of  the  co-executors  or  co- 
administrators should  die,  it  is  to  be  presumed  that  the  bond 
remains  a  security  for  the  performance  of  duty  by  the  other, 
unless  proper  steps  are  taken  to  have  the  bond  made  inoperative 

'  See   Wms.   Exrs.  544  ;  Hernandez,  *  A  person  who  writes  to  the  probate 

Goods  of,  L.  R.  4  P.  D.  229.  judge   that    he   will   become   surety   if 

^  Hicks  V.   Chouteau,    12    Mo.    341;  A.  B.  is  appointed,  is  not  so  hable  un- 

\V right  V.  Schmidt,  47  Iowa,  233.  less  he  e.xecutes  the  bond.     New  Or- 

^Rossz/.  Mims,  15  Miss.  121.  leans  Cttnal  Co.  v.  Grayson,  4  La.  Ann. 

Fidelity  insurance    companies,  prop-  511. 

erly  chartered,  are  expressly  allowed  in  '  Litterdale    v.    Robinson,    2    Brock, 

these  later  times  (1899)  to  act  as  sure-  159;  Brazer  z/.  Clark,  5  Pick.  96;  Moore 

ties  on  fiduciary  bonds  as  well  as  indi-  v.  State,  49  Ind.  558  ;  76  Va.  85. 

viduals.       See    Hunt's    Goods,    (1896)  ''Dobyns  z/.  McGovern,  15  Mo.  662 ; 

P.  288.  54  Kan.  793. 

203 


§    146  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

for  future  defaults."  But  as  to  the  sureties  in  a  joint  adminis- 
tration bond,  it  is  held  that  they  are  not  liable  to  one  adminis- 
trator for  the  defaults  of  the  other.  - 

The  real  tenor  of  the  bond  must,  however,  determine  greatly 
its  legal  effect,  on  the  usual  theory  of  principal  and  surety, 
though  not  without  reference  to  the  law  in  pursuance  of  which 
it  was  made.  In  Massachusetts  and  some  other  States,  the 
statute  authorizes  the  court,  in  case  joint  executors  or  adminis- 
trators are  appointed,  to  take  either  a  separate  bond  with  sure- 
ties from  each,  or  a  joint  bond  with  sureties  from  all.^ 

§  146.  Probate  Bond;  What  Property  is  covered  ;  "What  Func- 
tions included,  etc.  —  The  liability  of  a  surety  on  an  executor's 
or  administrator's  bond  is  limited  to  the  assets  which  rightfully 
come,  or  ought  to  have  come,  to  the  principal's  hands  in  the 
State  or  country  in  which  he  was  appointed  and  quaUfied.'' 
This  will  be  better  understood,  when,  in  the  course  of  the  pres- 
ent treatise,  the  subject  of  administration  assets  is  hereafter  dis- 
cussed. The  proceeds  of  such  assets,  arising  out  of  sales, 
conversions,  change  of  investment,  and  transfers  in  general, 
also  profit  and  interest,  are  properly  thus  included. ^  So,  too, 
effects  left  in  the  executor's  or  administrator's  hands,  and  prop- 
erty which  has  come  to  his  possession  or  knowledge  and  remains 
unaccounted  for  ;  '^  and  this  even  though  he  received  the  prop- 
erty before  his  appointment  ;  since  the  liability  extends  to  assets 
received  before  as  well  as  after  the  execution  of  the  bond.'' 
Failure  to  perform  the  duties  recited  in  the  bond,  such  as  re- 
turning an  inventory  or  rendering  an  account,  is  also  a  breach 
for  which  principal  and  sureties  are  liable,  even  though  the  dam- 


'  Stephens   v.   Taylor,  62    Ala.    269 ;  show  whether  both  sets   are  liable  or 

Dobyns  z/.  McGovern,  15  Mo.  662.     l^ut  which  set.     65  Tex.  152. 

cf.   Brazer  v.   Clark,  5   Pick.  96;  Com-  ■♦  Fletcher  j-.  Weir,  7  Dana,  345;  Gov- 

monwealth  v.  Taylor,  4  Phil.  (Pa.)  270 ;  ernor  v.  Williams,  3  Ired.  L.  152. 

Lancaster  v.  Lewis,  93  Ga.  727.  ^  Watson  v.  Whitten,  3  Rich.  (S.  C.) 

^  Haell    V.    Blanchard,  4    Desau.   21.  224;  Verret  z*.  Belanger,  6  La.  Ann.  109. 

See  Elliott  ?'.  Mayfield,  4  Ala.  417.  *  Poulware  v.  Hendricks,  23  Tex.  667. 

*  Mass.  Gen.  Stats,  c.  loi,  §  14.     Two  '  Gottsberger  v.  Taylor,  19  N.  Y.  150; 

setsof  sureties  are  properly  made  parties  Goode  t>.   Kuford,    14    La.    .A.nn.    102; 

to   one  suit,  where  it  is  necessary  to  Choate  z*.  Arrington,  116  Mass.  552. 

204 


CHAP,   v.]    BONDS  OF  EXFX-UTOKS  AND  ADMIMSTKATOKS.        §    1 46 

age  sustained  may  prove  but  nominal'  If  an  executor  or  ad- 
ministrator is  able  to  pay  a  debt  due  by  him  personally  to  the 
estate,  his  sureties  will  be  liable  with  him,  unless  he  discharges 
it.^  Ordinarily,  as  will  be  seen  hereafter,  administration  does 
not  extend  to  the  real  estate  of  the  deceased  ;  and  hence  rents 
received  after  the  death  (^f  an  intestate  may  not  be  thus  included, 
nor  the  proceeds  of  lands  sold,^  for  which  last  an  administrator 
usually  procures  a  license  and  gives  a  special  bond.  But  stat- 
utes regulate  this  whole  subject,  and  ultimately,  according  to 
the  modern  tendency,  an  administrator  or  executor  may  incur 
an  official  responsibility  for  rents  and  profits  or  for  the  proceeds 
of  real  estate,  so  as  to  involve  the  sureties  on  his  general  bond 
for  his  default  ;  '^  bonds  in  general  being,  furthermore,  construed 
according  to  their  particular  tenor. 

Probate  bonds  in  these  days  are  usually  so  worded  as  to  em- 
brace all  the  general  functions  which  the  executor  or  adminis- 
trator may  be  required  to  perform  in  pursuance  of  his  trust ; 
both  towards  the  court,  and  with  respect  of  the  creditors,  lega- 


'  Forbes  f.  McHugh,  152  Mass.  412; 
83  Wis.  394  ;  §  230. 

^Piper's  Estate,  15  Penn.  533.  And 
see  McGaughey  v.  Jacoby,  54  Ohio  St. 
487,  where  the  executor  was  insolvent 
when  appointed.  Money  set  down  in 
the  inventory  as  part  of  the  estate  must 
in  some  way  be  accounted  for.  Goode 
V.  Buford,  14  La.  Ann.  102  ;  Wattles  v. 
Hyde,  9  Conn.  10. 

^Cornish  v.  Wilson,  6  Gill,  299; 
Hartz's  Appeal,  2  Grant  (Pa.)  83  ;  Com- 
monwealth V.  Higert,  55  Penn.  St.  236 ; 
Hutchenson  v.  Pigg,  8  Gratt.  220 ;  Reno 
V.  Tyson,  24  Ind.  56 ;  Oldham  v.  Col- 
lins, 2  J.  J.  Marsh.  49  ;  Brown  v.  Brown, 
2  Harr.  (Del.)  51. 

^Phillips  V.  Rogers,  12  Met.  (Mass.) 
405;  Wade  V.  Graham,  4  Ohio,  126; 
Stong  ?'.  Wilkson,  14  Mo.  116;  Judge 
of  Probate  r.  Heydock,  8  N.  H.  491. 
An  executor  receiving  the  residue  in 
trust  for  charities,  but   giving  no  bond 


as  trustee  nor  turning  it  over  to  the 
trust,  his  bondsmen  are  liable  for  it. 
White  V.  Ditson,  140  Mass.  351.  And 
see  14  R.  I.  495.  As  to  liability  for 
proceeds  of  real  estate  sold,  see  ib. 
See,  also,  Dowling  v.  Feeley,  72  Ga. 
557  ;  Reherd  v.  Long,  77  Va.  839 ;  Mann 
7'.  Everts,  64  Wis.  372 ;  78  Va.  720. 
Liability  may  arise  for  the  proceeds  of 
life  insurance  policies  not  used  in  pay- 
ing debts.  16  Lea,  321.  The  surety 
on  the  bond  of  an  insolvent  executor 
who  owed  his  testator  is  not  liable  for 
that  debt.  Lyonw.  Osgood,  58  Vt.  707. 
Unless  it  could  have  been  realized  with 
due  diligence.  85  Tenn.  486.  Where 
one  was  induced  fraudulently  to  become 
a  surety  in  such  a  case,  all  the  stronger 
is  his  defence.  Campbell  f.  Johnson, 
41  Ohio  St.  588.  The  surety  on  an  ad- 
ministrator's replevin  bond  has  a  right 
against  the  sureties  on  the  administra- 
tion bond.     77  Mo.  175. 


205 


§  H6 


EXECUTORS    AND    ADMINISTRATORS. 


[part  II. 


tees,  distributees,  and  all  others  interested.'  So,  too,  may  a 
general  administration  bond  be  held  to  cover  all  the  duties  of  an 
administrator,  as  well  in  the  sale  of  land,  where  occasion  arises 
for  the  court's  license,  as  in  the  settlement  of  the  personalty. - 
But  if  an  administration  bond  contains  no  clause  securing  the 
interest  of  distributees,  the  sureties,  as  some  States  hold,  will 
not  be  liable  for  failure  or  refusal  to  distribute.^  The  sureties 
are  not  usually  liable  for  the  acts  of  an  executor  or  administra- 
tor in  meddling  with  property  to  which  he  has  or  acquires  no 
official  right  ;  ■♦  nor  for  any  mere  breach  by  him  of  a  personal 
duty  ;  5  nor  with  respect  to  property  held  or  acts  done  by  him  in 
some    other   distinct    capacity.*'      In    general,   liability  on   the 


'  Woodfin  V.  McNealy,  6  Fla.  256 ; 
People  V.  Miller,  2  111.  83 ;  Hazen  -o. 
Darling,  2  N.  J.  Eq.  133. 

•  Clarke  v.  West,  5  Ala.  117.  But  a 
bond  expressly  confined  to  personal 
property  does  not  extend  to  rents  and 
profits  derived  from  the  decedent's  real 
estate.  Worgang  v.  Clipp,  21  Ind.  1 19  ; 
121  Ind.  92.  Nor  are  sureties  liable  for 
proceeds  of  real  estate  not  turned  over 
to  heirs  where  the  latter  made  the  con- 
veyance as  of  their  own  property.  loi 
Ga.  6S7. 

Money  belonging  to  an  estate  received 
by  one  who  is  subsequently  appointed 
executor  or  administrator  becomes 
assets  for  which  his  bond  is  security. 
90  Me.  505. 

^  Arnold  v.  Babbitt,  5  J.  J.  Marsh. 
665.  The  condition  to  "  well  and  truly 
administer  according  to  law "  has  re- 
lation to  the  interest  of  creditors  and 
not  of  distributees.  Barbour  v.  Rob- 
ertson, I  Litt.  93.  And  correspondingly 
as  to  "legatees,"  in  a  bond  taken  for  ad- 
ministration under  a  will,  see  Small  v. 
Commonwealth,  8  Penn.  St.  loi  ;  Fra- 
zier  V.  Frazier,  2  Leigh,  642.  But  cf. 
Peoples  V.  Peoples,  4  Dev.  &  B.  L.  9 ; 
Judge  of  Probate  v.  Claggett,  36  N.  H. 
381.  "Due  administration  of  the  es- 
tate" includes  the  payment  of  the  bal- 
ance to  the  persons  entitled.     Cunning- 


ham V.  Souza,  I  Redf.  (N.  Y.)  462. 
And  see  Sanford  v.  Oilman,  44  Conn. 
46 1 .  Statutes  are  differently  construed. 
It  was  the  English  rule  of  construction, 
under  the  statute  22  &  23  Car.  II.  c.  10, 
that  the  condition  to  "well  and  truly 
administer  according  to  law,"  did  not 
include  the  neglect  or  refusal  to  distrib- 
ute; though  it  would  be  a  breach  that 
the  administrator  had  converted  the 
assets  to  his  own  use.  Wms.  Exrs. 
540,  541.  A  condition  prescribed  by 
New  York  statutes  requires  the  fiduci- 
ary to  "obey  all  orders  of  the  surrogate 
touching  the  administration  of  the  es- 
tate." This  clause  is  construed  in  Sco- 
field?'.  Churchill,  72  N.  Y.  565. 

■*  McCampbell  v.  Gilbert,  6  J.  J.  Marsh. 
592.  And  see  Douglass  v.  New  York, 
56  How.  (N.  Y.)  Pr.  178;  Jackson  v. 
Wilson,  117  Ala.  432. 

'"  loi  Ga.  46;  37  S.  C.  174. 

*  Barker  v.  Stanford,  53  Cal.  451  ; 
Sims  V.  Lively,  14  B.  Mon.  433  ;  Reeves 
V.  Steele,  2  Head,  647.  As  to  the  same 
person  being  guardian  or  trustee  and 
administrator,  see  §  247,  post ;  Schoul. 
Dom.  Rel.  §  324.  Where  an  executor 
is  named  trustee  under  the  will,  he  is 
chargeable  as  executor  on  his  bond  as 
such  until  he  has  given  bond  as  trustee, 
and  charged  himself  with  the  property 
as   trustee,     administration    being   the 


206 


CHAP,   v.]    BONDS  OF  EXECUTORS  AND  ADMINISTRATORS.        §    1 47 

fiduciary  bond  is  limited  to  such  damages  as  are  equitably  due 
to  the  party  or  parties  for  whose  benefit  the  action  is  brought, 
and  the  penal  sum  named  marks  only  a  final  limit.' 

Sureties  cannot  avoid  their  liability  under  the  bond,  because 
of  fraud  in  the  executor  or  administrator  in  procuring  their  ex- 
ecution, where  the  beneficiaries  of  the  estate,  in  whose  interest 
the  liability  is  to  be  enforced,  were  themselves  innocent  of  the 
fraud.^ 

Sureties  on  a  probate  bond,  it  is  held,  are  liable  for  defaults 
of  the  principal  occurring  after  their  own  death,  especially  if 
they  expressly  bind  in  terms  their  own  executors  and  adminis- 
trators.^ 

§  147.  Release  or  Discharge  of  Sureties. —  American  statutes 
frequently  provide  that  the  surety  to  a  probate  bond  may,  upon 
his  petition,  be  discharged  from  all  further  responsibility,  if  the 
court  deems  it  reasonable  or  proper,  after  due  notice  to  all  per- 
sons interested  ;  •♦  whereupon  other  security  will  be  required  of 
the  executor  or  administrator,  in  default  of  which  his  letters 

prior  duty.  See  §  247.  Where  one  is  ^Mundoriff  z'.  Wangler,  44  N.  Y. 
both  executor  and  trustee  under  a  will,  Super.  495  ;  2  Dem.  469. 
he  should,  of  course,  give  separate  bonds  ''Mass.  Gen.  Stats,  c.  loi,  §  16; 
for  each  trust.  85  Ind.  312.  Astolia-  Lewis  z/.  Watson,  3  Redf.  (N.  Y.)  43; 
bility  of  sureties  where  the  executor  or  Valcourt  v.  Sessions,  30  Ark.  515  ;  John- 
administrator  dies  and  his  personal  son  v.  Fuquay,  i  Dana,  514  ;  Norris  7/. 
representative  settles  the  accounts,  see  Fristoe,  3  La.  Ann.  646;  McKay  v.  Mc- 
Williamsf.  Flippin,  68  Miss.  6S0.  For  Donald,  8  Rich.  331  ;  Harrison  v.  Tur- 
waste  or  misapplication  by  the  repre-  beville,  2  Humph.  241  ;  Jones  v.  Ritter, 
sentative  himself,  such  sureties  need  not  56  Ala.  270 ;  2  Dem.  201,251.  As  to 
respond.     lb.  citation  in  such  a  case,  see    Stevens  v. 

'  State  V.  French,  60  Conn.  478.    One  Stevens,  3   Redf.  (N.  Y.)    507  ;  27  La. 

who  has  no  beneficial  interest  in    the  Ann.   344.     The   statute  discretion   of 

estate,  even  though  a  next  of  kin,  can-  the    court  to   discharge  a  surety  from 

not  maintain  an  action  as  for  breach  of  liability  (unlike  that   of  requiring    new 

the  fiduciary  bond.     62  N.  H.  228.  and  additional    security)  appears  to  be 

^  As  where  the  executor  was  in  fact  strictly  construed.     Jones  v.  Ritter,  56 

insolvent  when  appointed.  McGaughey  Ala.   270;  Wood  v.  WilUams,  61    Mo. 

V.  Jacoby,  54  Ohio  St.  487.  63  ;  People  v.  Curry,  59  111.  35.     Such 

As  for  the  expenses  of  an  administra-  proceedings  are  summary,  and  the  rec- 

tion  (^e  bonis  ttott  made  needful  by  the  ord  should  show  the  essential  facts.     i6 

executor's  carelessness,  see  t66  Mass.  La.  652  ;  63  Md.  14. 
569- 

207 


§    148  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

may  be  revoked.'  The  principal's  failure  to  perform  duties  as 
the  bond  prescribes  is  good  ground  for  presenting  such  petition.^ 
Release  of  the  sureties  on  the  bond,  must,  however,  be  a 
judicial  act  regularly  performed.  Often  before  such  release  is 
permitted  the  principal  may  have  to  settle  his  balances  or  else 
furnish  new  sureties,  as  various  codes  require.  And  where  an 
executor's  or  administrator's  bond  has  been  delivered  into  pro- 
bate custody  and  duly  accepted,  the  subsequent  erasure  of  their 
names  found  upon  the  bond  will  not  release  the  sureties.^  But 
the  intention  of  the  court  to  discharge  an  old  bond  and  take  a 
new  one  by  way  of  substitute  will  take  due  effect. "♦  The  local 
statutory  provisions  for  such  release  must  be  duly  complied  with 
by  the  court. 5 

§    148.    Nevw  or  Additional  Bonds;   when  and   how  required. — 

A  new  bond  will  be  required  of  an  executor  or  administrator, 
not  only  (as  local  acts  often  provide)  when  a  former  surety  is 
discharged  upon  his  request,  leaving  the  probate  security  inade- 
quate, but  in  general  wherever  it  appears  that  the  sureties  are 
insufficient  or  the  penal  sum,  under  existing  circumstances. 
The  court,  in  conformity  with  statute,  may  at  any  time,  on  the 
petition  of  any  person  interested  in  the  estate,  require  of  the 
representative  a  new  bond  with  a  surety  or  sureties,  and  in  such 
])enal  sum  as  shall  appear  just."  And  a  decree  requiring  an  ad- 
ditional bond  is  held  to  be  within  the  jurisdiction  of  the  court 
of  probate,  even  though  no  petition  to  that  effect  was  first  pre- 
sented.^ Sureties,  themselves,  according  to  the  practice  of  cer- 
tain States,  may,  instead  of  petitioning  to  be  discharged,  ask  for 

'  lb.  it  is  shown  that  the  aggregate  property 

^  Sanders  v.   Edwards,   29    La.    Ann.  of  the  sureties  is  not  equal  to  that  of 

696.  the  personal  estate  in  the  hands  of  the 

^ Brown-'.  Weatherby,  71  Mo.  152.  administrator.       Renfro   v.    White,    23 

••  Brooks  V.  Whitmore,  139  Ma.ss.  356.  Ark.  195.     Or  that  one  or  more  of  the 

^A  court  cannot  waive   statute    per-  sureties  has  died.     State  v.  Stroop,  22 

requisites  to    such    releasev      Clark   v-  Ark.  328. 

American  Surety  Co.,  171  111.  235.  And         'Ward  7'.  State,  40  Miss.  108;  Gov- 

the  surety  is  the  proper  parly  to  apply  ;  ernor  v.  Gowan,  3  Ired.   L.  342.     Stat- 

not  the  administrator.     lb.  utcs  may  well  confer  authority  upon  the 

''Mass.  (ien.  Stats,  c.  loi,  §  15;  Lor-  court  to   require   new  or  additional  se- 

ing  V.   Bacon,  3  Cush.  465.     As  where  curity  at  the  court's  own  instance. 

208 


CHAP,   v.]     BONDS  OF   KXECUTOKS  AND  ADMINISTRATORS.         §    1 48 

what  is  termed  counter-security.'  If  the  principal  fails  to  give 
the  new  or  additional  bond  within  such  reasonable  time  as  the 
court  may  have  ordered,  he  will  be  removed,  and  some  other 
l)erson  who  can  qualify  appointed  in  his  stead. ^  It  is  quite  desir- 
able that  the  discretion  of  the  probate  court  iti  requiring  bonds 
should  extend  to  all  changes  of  circumstances  as  to  the  repre- 
sentative himself,  the  sureties,  or  the  amount  of  the  estate. 

Whenever  a  new  bond  has  been  required  of  the  executor  or 
administrator,  by  way  of  substitution,  the  sureties  in  the  prior 
bond  are  usually  treated  as  liable  for  all  breaches  of  condition 
committed  by  him  before  the  new  bond  is  executed  and  accepted 
!))•  the  court  ;  ^  but  as  released  and  exempt  from  liability  for  his 
defaults  committed  afterwards. ■♦  Where,  however,  a  new  ad- 
ditional bond  is  given  by  the  executor  or  administrator  for  the 
performance  of  his  trust,  the  second  bond  is  cumulative  and  re- 
lates back,  so  that  the  sureties  on  the  new  and  original  bonds 
shall  all  be  regarded  as  parties  to  a  common  undertaking.  To 
distributees  and  other  parties  protected  thereby,  they  become 
responsible  to  the  extent  of,  and  as  among  themselves,  in  propor- 
tion to  the  penalties  of  their  respective  bonds  ;=  and  they  will  all 
share  the  benefit  of  counter-securities  given  to  one  or  more  of 
them,  unless  it  was  originally  agreed  that  such  securities  should 

'  Caldwell   ?'.  Hedges,  2   J.  J.  Marsh,  the  surety  petitioned   for  further  secu- 

485  ;  Brown  ?-,  Murdock,  16  Md.  521  ;  rity,  see  Bobo  r/.  Vaiden,  20  S.  C.  271. 

Russell  V.  McDougall,  3  Sm.  &  M.  234.  ''State  v.  Stroop,  22  Ark.  328;  Lin- 

^Mass.  Gen.  Stats,  c   loi,  §  17;  Na-  gle  v.  Cook,  32  Gratt.   262;  Russell  z/. 

tional  Bank  v.  Stanton,  116  Mass.  435.  McDougall,  3  Sm.  &  M.  234  ;    State  v. 

:\\\  order  requiring  the  administrator  to  Field.s,  53  Mo.  474  ;   Perry  v.  Campbell, 

give  a  new  bond  affects  his  right  to  ad-  10  W.  Va.  228  ;  68   Ala.  7,  21  ;  36  La. 

minister,  and  his  appeal  therefrom  with-  Ann.  414.     As  to  the  presumption  on 

out  a  bond  does  not  suspend  the  order,  lapse  of  time  that   a  default  occurred 

Bills  V.  Scott,  49  Tex.  430.  after   the    substitution,  see    Phillips   v. 

^Mass.  Gen.  Stats,  c.   loi,  §  18  ;  Mc-  Brazeal,  14  Ala.  746.     For  as  to  the  lia- 

Meeken  v.  Huson,  3  Strobh.  327.    It  is  bilityof  sureties  in  the  second  or  substi- 

held  that  in  case  of  release  and  substi-  tuted  bond,  the  gravamen  of  the  breach 

tution  the  second  set  of  sureties  become  may  be,  not  a  prior  misapplication,  but 

principally  Hable  to  the  extent  of  their  the   failure  to  pay  over.     Pinkstaff    v. 

l)ond;  and  then  if  they  prove  insuffi-  People,  59  111.  148;  Morris  i'.  Morris,  9 

cient,  the  first   set  to  the  date  of  their  Heisk.  814. 

release.    Morris  z/.  Morris,  9  Heisk.  814.  ^  Loring    v.    Bacon,    3    Cush.    465; 

As  to  an  error  of  balance  shown  where  Enicks   v.    Powell,  2    Strobh.  Eq.  196. 
14                                              209 


§    149  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

operate  for  some  exclusive  benefit.'  Co-sureties  may  stand  liable 
together  towards  the  court  and  those  for  whose  benefit  the  obli- 
gation was  taken,  but  as  among  themselves  unequally  responsible. 
Where  it  is  not  clear  that  the  new  bond  was  properly  taken  by 
the  court  in  lieu  of  the  former  one,  and  so  intended,  the  legal 
effect  must  be  to  furnish  additional  securities  for  the  perform- 
ance of  the  principal's  duties  under  his  original  obligation.^  New 
bonds  may  be  needful  sometimes  to  cover  newly  discovered 
property  of  the  decedent.^ 

§  149.  Lost  and  Missing  Probate  Bonds. —  Since  probate 
bonds  are  usually  copied  into  the  probate  records,  in  American 
practice,  the  record  may  serve  as  secondary  evidence  for  all 
needful  purposes  where  the  original  bond  is  missing  from  the 
files.  Local  acts  provide,  in  some  instances,  for  a  substitution, 
by  judicial  decree,  where  the  official  bond  together  with  the 
record  thereof  has  been  lost  or  destroyed.'' 

Thus  is  it  held  as  to  a  cause  of  action  ministrator  held  cumulative,  and  not  to 

arising  between  the  giving  of  the  two  discharge   the   old    sureties.      10    Mo. 

bonds.     Lingle  v.  Cook,  32  Gratt.  262.  App.  95.     The  remedies  for  breach  of 

'  Enicks  z'.  I'owell,  2  Strobh.  Eq.  196  ;  an    executor's  or  administrator's  bond 

Wood  V.  Williams,  61    Mo.  63 ;  Wolff  will   be  discussed    hereafter.     And  see 

V.  Schaeffer,  74  Mo.  154.  general  works  on   bonds,  and  the  rela- 

^  Wood  V.  Williams,  61  Mo.  63  ;  Peo-  tion  of  principal  and  surety. 

pie   V.    Curry,   59    111.    35;  Lacoste   v.  ^  36  La.  Ann.  414. 

Sphvalo,  64  Cal.  35.  "  See  Tanner  v.  Mills,  50  Ala.  356. 

A   new  bond  given  by  a  public  ad 

210 


CHAP.  VI.]       REVOCATION  OF  LETTERS,  ETC.  §  '50 


CHAPTER  VI. 

APPEAL,    REVOCATION  ;    NEW    APPOINTMENT,    ETC. 

§  150.  Appeal  from  Decree  of  Probate  Court;  Mandamus,  etc. 
- —  Appeal  from  the  decree  of  the  county  or  district  probate 
court  is  regulated,  in  England  and  the  United  States,  by  local 
statutes,  varying  from  time  to  time,  which  need  not  be  exam- 
ined here  at  length.  While  the  spiritual  jurisdiction  obtained, 
as  to  probate  and  administration,  in  the  mother  country,  appeal 
lay,  through  the  ecclesiastical  hierarchs,  to  what  was  known  as 
the  court  of  delegates,  but  afterwards,  instead,  to  the  judicial 
committee  of  the  privy  council."  Since  that  jurisdiction  has  be- 
come temporal  in  its  nature,  however,  under  the  Court  of  Pro- 
bate Act  of  1857,^  the  right  of  final  appeal  from  a  decree  of  the 
court  of  probate  has  been  transferred  to  the  House  of  Lords.^ 

In  most  American  States  the  supreme  judicial  court  of  com- 
mon law  is  also  the  supreme  court  of  probate  and  equity,  and 
hence,  a  ready  appeal  is  taken  from  the  county  probate  court, 
by  any  one  aggrieved  by  its  decree.  Indeed,  in  certain  matters 
pertaining  to  the  estates  of  deceased  persons,  especially  where 
the  probate  of  a  will  involving  some  considerable  property  is  con- 
tested, the  decree  of  the  surrogate  or  county  judge  of  probate 
appears  often  procured /w /(?;';««  only,  the  full  trial  being  had 
on  appeal,  where  a  jury  may  better  be  empanelled,  and  the  case 
finally  determined  upon  the  law  and  evidence  before  a  more 
august  tribunal,  as  seems  befitting  to  the  gravity  of  the  contro- 
versy. •♦ 

To  such  higher  tribunal,  therefore,  intermediate  or  final,  any 

'  Wms.  Exrs.  571,  572,  citing  stats.         ^  Supra,  §    1.     Tliis  right  to  appeal, 

24  Hen.  VIII.  c.  12;  25  Hen.  VIII.  c.     being   a  statutory    right,   can    only  be 

'9!  3  &  4  Wm.  IV.  c.  92.  secured  by  a  strict  compliance  with  the 

^  20  &  21  Vict.  c.  77.  statute   conditions.     Dennison   v.  Tal- 

3  Wms.  Exrs.  574.  mage,  29  Ohio  St.  433. 

21  I 


§    I50  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

person  aggrieved  by  the  order,  sentence,  decree,  or  denial  of 
the  court  or  judge  taking  primary  jurisdiction  of  the  case,  may 
appeal.  This  appeal  has  sole  reference,  however,  to  the  order 
or  decree  in  question,  as,  for  instance,  in  admitting  such  a  will 
to  probate  and  issuing  such  letters  testamentary,  or  in  granting 
such  letters  of  administration  ;  though  interlocutory  orders  may 
thus  be  considered  as  well  as  the  final  decree  complained  of. 
The  appeal,  in  fact,  gives  the  appellate  court  no  jurisdiction  to 
proceed  further  in  the  settlement  of  the  estate  ;  but  its  judg- 
ment on  appeal  being  upon  such  decree,  order,  sentence,  or 
denial  of  the  court  below,  it  is  certified  to  that  tribunal,  where 
further  proceedings  are  had  accordingly,  or  stopped,  as  if  it  had 
made  no  decision.  The  judgment  of  the  appellate  tribunal  is  to 
be  carried  into  effect  by  the  probate  court,  whose  jurisdiction 
over  the  cause  and  the  parties  is  not  taken  away  by  the  appeal.' 
Mandamus  from  the  superior  temporal  courts  was  a  remedy 
formerly  invoked  against  courts  spiritual  in  English  practice  ;  as, 
for  instance,  to  compel  probate  of  a  will  or  a  particular  grant  of 
administration,  or  in  case  of  an  impro}Xir  appointment  or  repeal. - 
But  by  modern  practice,  in  the  United  States  at  least,  since  the 
whole  jurisdiction  vests  in  the  temporal  courts,  appeal  has  be- 
come the  regular  mode  of  procedure  before  a  higher  tribunal, 
wherever  the  grievance  was  based  upon  a  decree  of  the  probate 
court; 3  though  mandamus  or  prohibition  might  still  lie  if  the 
probate  judge  refused  to  entertain  a  proper  petition  or  to  decide 
at  all  upon  the  case,  or  if  he  obstructed  an  appeal  from  his  de- 
cision.^ 


'  Metcalf,  J.,  in  Ounliani  7-.  Dunham,  aj^point    any    one   else,   except   for  the 

16  Gray,   577;  Curtiss  v.  Beardsley,  15  special  and  temporary  exigency.   §§134, 

Conn.  523.      Where,  upon  reversing  on  135. 

appeal  the  decree  of  the  surrogate  ad-  ^  Wms.  Exrs.  235,  387,  435,  and  cases 
mitting  a  will  to  probate,  the  case  is  cited;  2  Sid.  114;  i  Stra.  552.  In  case 
sent  back  for  a  re-trial  of  a  question  of  of  an  undue  grant  of  administration, 
fact,  the  powers  of  executors  continue  which  had  not  already  passed  the  seals, 
until  a  final  determination  of  such  issue  a  i)rohibition  issued  instead,  i  P'reem. 
and  a  revocation  by  the  surrogate  of  the  372  ;  Wms.  Exrs.  585. 
probate.  Thompson  v.  Tracy,  60  N.  V.  ^  State  v.  Mitchell,  3  Brev.  (S.  C.)  520. 
174.  The  probate  court  cannot  re-  ^  State  v.  Castleberry,  23  Ala.  85; 
voice  its  decree  of  appointment  penrl-  Gresham  v.  Pyron,  17  Geo.  263 ;  Wil- 
ing an  appeal.     ^-^  X.  J.  Eq.  764.     \or  liams  -■.  Saunders,  5  Coldw.  60. 

212 


CHAP.   VI.]  REVOCATION    OF    LETTERS,    ETC.  §    15^ 

§   151.    Appeal  from  Decree    of  Probate  ;   Subject   continued.  — 

The  right  to  appeal  depends  upon  the  relation  of  the  appellant 
to  the  subject-matter  of  the  probate  decree  or  order.  A  person 
is  aggrieved,  within  the  meaning  of  our  practice  acts,  when  his 
rights  are  concluded  or  in  some  way  affected  by  such  decree  or 
order ;  nor  is  it  essential  that  he  was  directly  connected  with 
the  proceedings  below.  A  legatee  or  distributee,  a  surety  on 
the  bond,  another  administrator,  a  guardian  or  a  trustee,  a  cred- 
itor, any  and  all  of  them  may,  under  various  circumstances,  ex- 
ercise the  right  to  appeal  from  the  probate  of  a  will  or  the  issue 
of  letters  to  a  particular  appointee.'  Appeal,  according  to  the 
practice  of  some  States,  as  fully  detailed  by  the  local  statute, 
should  be  claimed  in  writing,  and  notice  given  at  the  probate 
office,  together  with  the  reasons  of  appeal,  within  a  specified 
brief  time  (such  as  thirty  days)  after  the  decree  complained  of ; 
copy  being  served  meanwhile  on  the  appointee  and  adverse 
party.  The  appeal  should  be  entered  at  the  next  convenient 
rule  day  of  the  supreme  court  (or  in  about  sixty  days).  The 
supreme  court  may  exercise  a  further  discretion  in  revising  the 
matter,  within  a  much  longer  period  (such  as  one  or  two  years) 
where  the  petitioner  was  abroad  at  the  time  of  the  decree,  or 
where  the  omission  to  seasonably  claim  and  prosecute  an  ap- 
peal was  otherwise  excusable.  After  an  appeal  is  claimed  and 
notice  given  at  the  probate  registry,  all  proceedings  in  pur- 
suance of  the  order  or  decree  appealed  from  will  cease  until  the 
determination  of  the  supreme  court  is  had  ;  but  if  the  appellant 
in  writing  waives  his  appeal  before  entry  of  the  same,  proceed- 
ings may  be  had  in  the  probate  court,  and  the  appointment  or 
probate  may  stand  as  if  no  appeal  had  been  taken.  Where, 
however,  an  appellant  fails  to  enter  and  prosecute  his  appeal,  the 
supreme  court  may,  at  the  instance  of  any  person  interested, 
affirm  the  former  sentence,  or  make  such  other  order  as  law  and 

'  See   Livermore  v.   Bemis,   2  Allen,  578.     The  designated  executor,  vested 

394  ;    Northampton   v.   Smith,   1 1    Met.  with  discretion,  may  appeal  from  a  re- 

390.     Where    an   appeals    fails  merely  fusal  of  probate,    notwithstanding  the 

because  the  appellant  cannot  prove  that  opposition  of  the  beneficiaries  who  have 

he  is  a  party  entitled  to  appeal,  the  pro-  made  a  private  settlement.     Cheeverz/. 

bate  decree  stands  as  if  not  appealed  Judge,  45  Mich.  6. 
from.     Cleveland  v.  (guilty,  128  Mass. 

213 


§    152  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

justice  require.  On  appeal,  issues  of  fact,  such  as  the  due  ex- 
ecution of  a  will,  may  be  tried  by  a  jury."  Appeal  to  a  higher 
tribunal  to  reverse  the  sentence  by  which  letters  or  a  probate 
had  been  granted  offers  thus  a  ready  means  of  revocation,  where 
the  grant  or  the  probate  was  improper.^  But  appeal  may  be 
thus  taken  not  upon  facts  alone,  but  upon  some  point  of  law  in- 
volved in  the  decree  or  order  rendered  below.^ 

A  supreme  court  of  equity  has  sometimes  taken  jurisdiction 
to  set  aside  letters  of  administration  or  a  probate  fraudulently 
procured. •♦ 

§  152.  Revocation  by  Proceedings  in  the  Probate  Court. —  The 
probate  court  has  always  exercised  a  plenary  jurisdiction  in  re- 
voking or  vacating  its  own  decrees  improperly  rendered  ;  thereby 
correcting  errors  such  as  arise  out  of  fraud  or  mistake,  cancel- 
ling letters  which  had  been  issued  without  jurisdiction,  revoking 
an  appointment  granted  to  the  wrong  party,  and  admitting  a 
subsequent  will  or  codicil  notwithstanding  the  improper  probate 
of  an  earlier  one.  Such  jurisdiction  is  available  after  the  time 
of  appealing  from  the  decree  is  past.  "  This  power,"  observes 
Gray,  J.,  "does  not  make  the  decree  of  a  court  of  probate  less 
conclusive  in  any  other  court,  or  in  any  way  impair  the  probate 
jurisdiction,  but  renders  that  jurisdiction  more  complete  and 
effectual,  and  b}'  enabling  a  court  of  probate  to  correct  mistakes 

'  Mass.  Gen.   Stats,  c.   117  ;  Peters  v.         ^  From  the  nature  and  necessities  of 

Public  Admini.strator,  i    Bradf.  (N.  V.)  the  case,  however,  it  is  usually  provided 

200;  supra,  Part  I. ;  Thompson  v.  Tracy,  that  in  case  of  an  appeal  from  a  decree 

6c  X.  \'.  174;  Wnrthingto)!  7'.  Gittings,  appointing  a   special  administrator   he 

56  Md.  542.     The  practitioner  should  shall   proceed  in  the  execution  of  his 

consult  the  local  statute  and  procedure  duties  until  the  supreme  court  directs 

of  his  own  Stateon  this  general  subject,  otherwise.     Mass.  Gen.  Stats,  c.  94. 
English   rules  of  court,   regulating  ap-         ^  (1893)  ^^-  '^• 

peals  from  probate  court,  may  be  com-         *■  Thus,  in  Georgia,  a  court  of  equity 

pared  in  Wms.  Exrs.  574.     The  discre-  has  entertained  jurisdiction  to  set  aside 

tion  of  the  judge  below,  notwithstand-  letters  of    administration  procured  on 

ing  a  claim  of  appeal,  appears  by  these  fraudulent   representation  of  intestacy, 

rules  to  be  more  favorably  considered,  and  to  compel  the  wrongful  administra- 

Ib.  tor  and  his  sureties  to  account  with  the 

An   appeal    is    usually    restricted    to  lawful   executor.     Wallace  v.  Walker, 

the  matters  stated  as  cause  for  such  ap-  37  Ga.  265.     But  see  Cooper  v.  Cooper, 

peal.     165  Mass.  240.  5  N.  J.  Eq.  i. 

214 


CHAP.  VI.]       REVOCATION  OF  LETTERS,  ETC.  §  152 

and  supply  defects  in  its  own  decrees,  better  entitles  them  to 
be  deemed  conclusive  upon  other  courts.  There  is  no  reason 
to  apprehend  that  such  a  power  may  be  unjustly  exercised.  It 
is  vested  in  the  same  court  which  is  intrusted  with  the  original 
jurisdiction  over  all  probates  and  instruments." '  Moreover, 
proceedings  for  such  revocation  or  change  in  the  probate  decree 
are  conducted  upon  the  same  principle  as  the  original  petition  ; 
notice  issues  as  before  to  all  parties  in  interest,  and  the  execu- 
tor or  administrator  is  cited  before  the  judge,  to  show  cause 
why  the  original  probate  or  administration  should  not  be  re- 
voked and  his  letters  surrendered  accordingly.  And  from  the 
decree  thus  rendered,  an  aggrieved  party  may  take  an  appeal, 
as  in  other  instances.^ 

Due  course  of  procedure  before  the  probate  court  requires 
that  the  court  shall  revoke  the  old  probate  or  administration  be- 
fore or  simultaneously  with  granting  a  new  one.  This  has  us- 
ually been  the  practice  in  the  English  ecclesiastical  courts ;  ^ 
though  numerous  authorities,  English  and  American,  have 
maintained  that  if  administration  was  committed  to  the  wrong 
party  and  then  to  the  right,  the  latter  grant  repealed  the  former 
without  any  formal  decree  of  revocation ;  "^  a  prime  reason  for 
such  contention  being,  of  course,  the  practical  justice  of  permit- 
ting the  later  decree  to  stand  effectual.  But  which  is  to  be 
styled  the  wrong  party  and  which  the  right,  we  may  ask,  unless 
the  probate  record  shows  in  some  way  that,  as  between  the  two 
grants,  such  an  issue  was  joined  ?     And  if  not  joined,  by  such 

■  Waters  v.   Stickney,   12  Allen,   15,  first    appointed  disappears  and  cannot 

and  cases  cited  ;    Vance  v.  Upson,   64  be  served  with  a  citation  should  not  fa- 

Tex.  266.  tally  obstruct  the  revocation  of  an  im- 

^  lb.      And    see    Wms.    Exrs.     571;  proper  grant  and  the  issue  of  new  letters 

Curtis    v.    Williams,    23    Ala.    570;    8  to  the  rightful  person.     Langley,  Goods 

Blackf.    203;    Thompson  v.  Hucket,  2  of,  2  Robert.  407. 

Hill   (S.  C.)   347  ;  Wilson   v.  Hoes,  3  -*  Wms.  Exrs.  574;  Owen,  50;  Vance 

Humph.    142 ;     State    v.    Johnson,    7  v.  Upson,  64  Tex.  266. 

Blackf.  529;  Cleveland  v.   Quilty,   128  Where   letters  were   granted   in  the 

Mass.  578  ;  Scott  v.  Crews,  72  Mo.  261 ;  wrong  county,  by  reason  of  a  last  resi- 

Munroe  v.  People,  102  111.  406;  Harri-  dence  of  decedent  in  another  county  of 

son  V.  Clark,  87  N.  Y.  572.  the  same  State,  the  court  of  rightful 

3  Wms.  Exrs.   574,   575  ;    Cro.  EHz.  jurisdiction  should  require  a  revocation 

315;  Toller,  126;  White  z/.  Brown,  7  T.  of   the  fomier   letters    before  granting 

B.  Monr.  446.     The  fact  that  the  party  letters.     Coltart  v.  Allen,  40  Ala.  155. 

215 


§    153  EXECUTORS    AND    ADMINISTRATORS.  [PART   It. 

a  showing,  and  passed  upon,  the  readier  presumption  is  that  the 
court  made  the  latter  grant  imprudently,  unmindful  that  the 
former  was  outstanding.  In  all  cases,  however,  where  the  first 
administration  is  revoked,  the  second  stands  good,  though 
granted  after  the  grant  of  the  first  and  before  the  repeal  of  it.' 
In  case  an  administrator  is  irregularly  appointed,  because  of  a 
will  presented  for  probate,  the  appointment  stands  until  revoked 
by  at  least  a  definitely  inconsistent  grant  ;^  and  so  with  an  ex- 
ecutor duly  appointed,  though  there  may  be  a  later  will  not  yet 
offered  in  probate.^ 

§  153.  Grounds  upon  wMcli  Revocation  is  Proper.  —  Among 
the  grounds  upon  which  revocation  is  proper,  may  be  stated 
the  following :  That  the  letters  testamentary  or  of  administra- 
tion were  issued  without  jurisdiction,  inasmuch  as  the  party 
was  still  living,  or  his  last  residence  and  situs  of  property  con- 
ferred the  whole  jurisdiction  elsewhere.''  That  the  will  was 
probated  through  fraud  or  error,  or  that  some  later  will  or  codi- 
cil should  be  admitted. ^  That  general  administration  was 
granted,  whereas  the  deceased  died  testate.''  That  adminis- 
tration with  will  annexed  was  granted  regardless  of  the  execu- 
tor's rights.7  That  administration  was  granted  earlier  than  the 
statute  permits  to  one  of  a  class  not  preferred  therein  ;  or  that 
it  was  granted  to  another  person  than  the  widow  or  the  next  of 
kin,  regardless  of  the  legal  priorities.*^     That  administration  was 

'  Com.  Dig.  Administrator  B;  Wms.  v.  Stewart,  25  Ala.  408;  Harrington  v. 

Exrs.  575.     Under  the  New  Jersey  stat-  Brown,  5  Pick.  519,  522;    Burns  v.  Van 

ute,  where  letters  of  administration  are  Loan,  29  La.  Ann.  560.     See  Coltart  v. 

revoked    for   informality   or   illegality,  Allen,  40  Ala.  155. 

new  letters  may  be  granted  to  the  same  '  Wms.  Exrs.  576  ;  Waters  v.  Stick- 
person,  where  such  grant  is  proper,  ney,  12  Allen,  4;  Hamberlin  t^.  Terry,  i 
without  a  new  application  or  notice.  Sm.  &  M.  Ch.  589.  But  see  64  Tex. 
Uelany  v.  Noble,  3  N.  J.  Eq.  559.  266. 

*  Franklin  v.  Franklin,  91   Tenn.  119.  ^  Edelen  v.  Edelen,  10  Md.  52  ;  Bulk- 

A  mere  order  for  probate  without  an  ley  t/.  Redmond,  2  Bradf.  (N.  Y.)  281  ; 

actual  grant  of  probate  or  letters  testa-  77  Ala.  323  ;  Dalrymple  v.  Gamble,  66 

mentary    is    insufficient.       Hadjiar    v.  Md.  298. 

Pitchey,  (1894)  A.  C.  437.  '  Thomas  v.  Knighton,  23  Mo.  318; 

^  50  N.  J.  Eq.  295.  Patton's    Appeal,    51    Penn.    St.    465; 

■•  Morgan  v.  Dodge,  44  N.    H.  255;  Baldwin  v.  Buford,  4  Yerg.  16. 

Napier,  Goods  of,  i  Phillim,83;  Hooper  ^  Mills  v.  Carter,  8  Blackf.  203;  Wil- 

216 


CHAP.  VI.]       REVOCATION  OF  LETTERS,  ETC.  §  ^53 

granted  to  a  disqualified  person  or  one  not  entitled  at  all.'  That 
the  preferred  party's  renunciation  was  forged  or  fraudulently  pro- 
cured.' That  the  judge  of  probate  who  granted  the  letters  was 
an  interested  party.^  That  the  party  having  a  right  to  inter- 
vene was  not  cited  in  nor  cognizant  of  the  proceedings.*  That 
grant  upon  the  estate  of  a  married  woman  was  made  as  though 
she  were  single.^  In  general,  that  there  was  essential  fraud, 
error,  or  mistake  in  the  original  decree  and  appointment,''  or 
that  the  appointment  was  without  authority  of  law.^  If  the 
grant  may  be  considered  voidable  rather  than  void,  revocation 
becomes  eminentl)^  proper  in  such  cases. 

It  would  appear  that  a  county  probate  court  may,  of  its  own 
motion,  institute  and  carry  on  proceedings  to  revoke  its  irregu- 
lar decrees.  Yet,  as  a  rule,  the  private  party  who,  as  of  right, 
seeks  revocation  of  an  appointment,  because  some  preferred 
party  was  passed  over,  should  be  of  that  class  himself,  and  in  a 
position  to  profit  by  such  revocation.**  That  the  letters  testa- 
mentary or  of  administration  have  irregularly  issued  without  the 

liams'  Appeal,  7  Penn.  St.  259  ;  Thomp-  ''  Haniberlin  v.   Terry,   i    Sm.  &  M. 

son   V.    Hucket,    2    Hill    (S.    C.)    347;  Ch.  589 ;  Com.   Dig.  Administrator  B; 

Wms.  Exrs.  578;  Stebbins  v.  Lathrop,  Proctor  7-.  Wanmaker,  i  Barb.  Ch.  302  ; 

4  Pick.  T,2 ;  Pacheco,  Estate  of,  23  Cal.  Broughton   v.     Bradley,   34    Ala.    694. 

476;   Rollin  V.  Whipper,  17  S.  C.  32  ;  Special   causes  of  revocation   are  sug- 

40  N.  J.  Eq.  184.  gested  by  local  statutes.     4  Dem.  394. 

'Thomas  v.  Knighton,  23  Md.  318;  Where   probate   of  a  will  has  been 

Harrison  v.  Clark,   87   N.   Y.  572  ;    13  granted  in  common  form,  the  executor 

Phila.  296.  may  be  aftenvards  cited  to  prove  it  in 

-Thomas  v.  Knighton,  33  Md.  318;  solemn  form;  and  if  he   cannot    suffi- 
Wilson  V.  Hoes,  3  Humph.  142.     And  ciently  prove  it,  the  probate  will  be  re- 
see  as  to  renunciation  upon  a  condition  voked.     Wms.   Exrs.  575  ;  supra,  §  66. 
not  fulfilled,   Rinehart  v.   Rinehart,  27  •'  But  see  Floyd  v.  Herring,  64  N.  C.  409.N 
N.  J.  Eq.  475.  ^  McCabe  v.  Lewis,  76  Mo.  296. 

'Coffin  V.  Cottle,  5  Pick.  480;/-  '  Mecklenburgh  v.  Bissell,  2  Jones"^ 
Echols  V.  Barrett,  6  Ga.  443.  It  is  held  (  (N.  C.)  L.  387  ;  Edmundson  v.  Roberts," 
that  an  administrator  may  accept  the  i  How.  (Miss.)  217;  De  Lane's  Case, 
office  of  probate  judge  without  vacating  2  Brev.  167.  And  see  Hardaway  v. 
the  trust  of  administrator.  Whitworth  Parham.,  27  Miss.  103  ;  Kelly  v.  West, 
V.  Oliver,  39  Ala.  286.  But  semble  he  80  N.  Y.  139.  A  debtor  cannot  thus 
should  resign  or  be  removed  if  the  trust  proceed,  i  Dem.  163.  Where  admin- 
is  within  the  same  county  jurisdiction,  ist ration  was  granted  in  the  belief  that 
and  remains  unfulfilled.  there  was  no  will,  revocation  may  be 

••  Young  J-.   Holloway,   (1S95)   !'•  ^7  ex  fnero  mottt.     77  Ala.  323. 

'  (1893)  P-  16. 

217 


§    153  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

notice  or  citation  of  proper  parties,  as  required  by  law,  is  a  cause 
for  revoking  or  vacating  the  decree,  on  the  appUcation  of  those 
entitled  to  such  notice.  And  the  same  holds  true  where  a  will 
is  admitted  to  solemn  probate,  in  similar  disregard  of  statute 
formalities.'  It  should,  however,  be  borne  in  mind  that  the 
right  to  be  cited  in  does  not  necessarily  render  an  appearance 
indispensable ;  and  that  in  granting  administration,  the  failure 
of  one  entitled  to  the  trust  in  preference  may  often  be  con- 
cluded by  his  waiver  or  the  failure  to  seasonably  apply  or  to 
qualify.^  A  regular  appointment  should  not  be  revoked  because 
parties  in  priority,  once  concluded  by  their  own  acts  or  laches, 
seek  without  special  good  reason  to  assert  such  priority  after- 
wards.^ A  judge  may  select  one  or  more  from  the  class 
primarily  entitled  ;  but  having  exercised  his  discretion,  he  ought 
not  to  revoke  without  good  cause. ■♦ 

That  the  occasion  for  a  limited  or  special  administration  has 
ceased  to  exist  is  good  cause  for  revocation  or  supersedure.s 
The  failure  to  quahfy  by  bond  in  the  first  instance  appears  in 
some  States  to  be  regarded  as  cause  for  revocation  ;  '^  but  '  his 
is  only  for  convenience,  and  the  more  correct  view  is,  that  the 
condition  precedent  failing,  there  is  no  appointment  to  be  re- 
voked, but  rather  a  supplementary  decree  of  suitable  tenor  to  be 
entered.7 

'  Wms.  Exrs.  578;  i  Lev.  305;  Fitz-  163.     And  see  Ehlen  v.  Ehlen,  64  Md. 

gib.  303;  Kerr  v.  Kerr,  41   N.  Y.  272;  360.     This  becomes  often  a  matter  of 

Lawrence's    Will,    3    Halst.    Ch.    215;  statute    construction.       See    Dietrich's 

Waters  v.  Stickney,  12  Allen,  15;  Wal-  Succession,  32  La.  Ann.  127. 

lace  z/.   Walker,    37   Ga.  365;  McCaf-  "  Brubaker's  Appeal,  98  Penn.  St.  21. 

fray's  Estate,  38  Penn.  St.  331  ;  Morgan  ^  Morgan  v.   Dodge,  44  N.    \l.  260; 

V.  Dodge,  44  N.  H.  260.  54  Md.  359. 

^  =  Stoker  v.  Kendall,     Busb.   (N.  C.)"^  *  See  Wingate  v.   Wooten,   5  Sm.  & 

(l.  242  ;  Cold  V.  Dial,  12  Tex.  100;  and  M.  245. 

see  supra,  §  112.  The  jurisdiction  to  ^  But  it  might  happen  that  the  court 
revoke  in  such  cases  held  discretionary  had  imprudently  and  irregularly  issued 
under  the  code  in  Hutchinson  v.  Priddy,  the  letters  without  waiting  for  a  proper 
12  Gratt.  85.  bond,  in  which  case  revocation  or  va- 
^  lb.  Nor  where  letters  issued  to  a  eating  the  appointment  would  be  suita- 
competent  person  will  they  be  revoked  ble,  new  letters  issuing  when  the  requi- 
upon  the  subsequent  claim  of  a  person  site  bond  was  filed.  See  Bell,  C.  J.,  in 
who  was  incompetent  at  the  time  of  the  Morgan  7'.  Dodge,  44  N.  II.  261.  Re- 
grant.     Sharpe's  Appeal,  87   Penn.  St.  moval  may  sometimes  reach  this  case. 

218 


CHAP.  VI.]       REVOCATION  OF  LETTERS,  ETC.  §  1 54 

§  154.  Removal  of  Executor  or  Administrator.  —  Under  stat- 
utes now  in  force  in  most  of  the  United  States,  the  probate 
court  is  empowered  to  make  a  vacancy  in  the  fiduciary  offtcefor 
sundry  good  causes  specified,  and  to  appoint  a  successor.  Thus, 
in  Massachusetts,  if  an  executor  or  administrator  becomes  in- 
sane, or  proves  otherwise  incapable  of  discharging  his  trust,  or 
for  any  reason  "  evidently  unsuitable  "  therefor,  he  may  be  re- 
moved, notice  of  such  proceedings  having  been  given  to  him  and 
to  all  parties  interested.'  Moreover,  inasmuch  as  no  one  can  be 
appointed  without  first  qualifying  by  furnishing  a  suitable  bond, 
provision  is  made  for  the  summary  removal  of  an  executor  or  ad- 
ministrator who,  upon  being  ordered  by  the  probate  court  to  give 
a  new  bond,  does  not  seasonably  comply  with  the  order.^  And 
inexcusable  negligence  to  file  an  inventory  or  settle  his  accounts 
in  court,  after  having  been  duly  cited,  is  sometimes  specified  as 
proper  cause  for  removal. ^ 

It  is  perceived  that  statutes  of  this  character  confer  upon  the 
court,  and  most  appropriately  too,  a  broad  discretion  as  to  the 
various  instances  which  may  justify  removal.  Whenever,  from  any 
cause,  the  executor  or  administrator  becomes  unable  to  perform 
properly  the  substantial  duties  of  his  office,  he  may  be  regarded 
as  "evidently  unsuitable."  •♦  Unsuitableness  may  be  inferred 
also  from  wilful  misconduct,  or  even  from  obstinate  persistency 
in  a  course  plainly  injurious  to  the  interests  of  the  estate,  and 
impairing  its  value ;  and  in  fact,  as  a  rule,  any  unfaithful  or  in- 
competent administration,  which  will  sustain  an  action  on  one's 
probate  bond,  should  be  sufificient  cause  for  his  removal. 5    Causes 

See  lo   La.   Ann.   94  ;  95   N.   C.   353  ;J  Under  the  Texas  act  of  1876,  a  probate 

§  155.  judge  may  of  his  own  motion  remove 

'Mass.   Gen.    Stats,  c.    loi,  §   2;   c.  one  for  faiUng  "to  obey  any  order  con- 

100,  §  8.     See  72  Cal.  335.  sistent  with  this  act,"  etc.     Wright  v. 

^  Mass.  Gen.  Stats,  c.  loi,  §  17;  McNatt,  49  Tex.  425.  As  to  insanity, 
Morgan  v.  Dodge,  44  N.  H.  261  ;  De  see  68  Cal.  281  ;  4  Dem.  81. 
Flechier,  Succession  of,  i  La.  Ann.  20;  ^  As  where,  the  estate  being  insol- 
Davenport  v.  Irvine,  4  J.  J.  Marsh.  60;  vent,  the  executor  or  administrator  re- 
oIcFadgen  v.  Council,  81  N.  C.195)  fuses  to  take  steps  for  recovering  prop- 
Bills  V.  Scott,  49  Tex.  430.  erty   fraudulently  conveyed,  when   the 

^  See  Mass.  Gen.  Stats,  c.   loi,  §  2;  creditors  offer  to  indemnify  him.     An- 

c.  99,  §  26.  drews  v.  Tucker,  7   Pick.  250.     Or  for 

^  See  Thayer  v.  Homer,  11  Met.  104.  his  fraud  and  corrupt  dealings.     28  La. 

219 


§  154 


EXECUTORS    AND    ADMINISTRATORS. 


[part  II. 


of  unsuitableness,  operating  at  the  time  of  the  appointment,  but 
disclosed  more  fully  in  the  course  of  administration,  and  upon 
experiment,  may  afford  the  ground  of  one's  subsequent  removal 
from  office  ;  the  point  here  being,  not  that  the  unsuitableness 

aid  heirs  or  others  outside  the  Hne  of 
his  official  duty.  Richards  v.  Sweet- 
land,  6  Cush.  324.  Nor  that  doubtful 
claims  are  not  prosecuted,  especially  if 
the  estate  be  small.  Myrick  Prob.  97. 
Nor  that  he  makes  no  returns,  when 
there  is  nothing  to  return.  Harris  v. 
Seals,  29  Ga.  585.  Nor  where  his  de- 
lays are  satisfactorily  explained.  An- 
drews V.  Carr,  2  R.  I.  117.  Nor,  as 
ruled,  simply  that  he  cannot  read  or 
write  (cf.  supra,  §  104) ;  Gregg  v.  Wil- 
son, 24  Ind.  227.  And  see  i  Dem.  577. 
Opportunity  to  file  accounts  and  inven- 
tory should  be  given  if  this  be  the  griev- 
ance alleged ;  the  court  ordering  him  to 
account.  28  La.  Ann.  800.  Cf.  77 
N.  C.  360.  As  to  his  bankruptcy,  or 
insolvency,  see  Dwight  v.  Simon,  4  La. 
Ann.  490 ;  Cooper  v.  Cooper,  5  N.  J. 
Eq.  9;  §§  33,  104;  Gibson  v.  Maxwell, 
85  Ga.  235.  As  to  transactions  by  the 
executor  or  administrator,  not  perhaps 
justifiable,  but  held  insufficient  cause 
for  his  removal,  see  Carpenter  v.  Gray. 
32  N.  J.  Eq.  692  ;  18  S.  C.  396;  Killam 
V.  Costley,  52  Ala.  85.  Conflicting  in- 
terest will  not  furnish  ground  for  re- 
moval except  in  a  clear  and  extreme 
case.  Randle  ?-.  Carter,  62  Ala.  95. 
For  failing  to  sell  his  testator's  land, 
where  the  time  of  sale  was  left  to  his 
discretion,  and  where  he  has  tried  in 
good  faith  to  sell,  an  executor  should 
not  be  removed.  Haight  v.  Brisbin,  96 
N.  Y.  132.  Nor  for  apprehended  in- 
solvency where  the  estate  is  well  pro- 
tected. 14  Phila.  317.  Nor  upon  a 
mere  citation  to  appear  and  settle  his 
accounts.  108  111.  403.  An  order  re- 
quiring another  bond  does  not  oust  a 
court  of  its  jurisdiction  to  remove.  38 
N.  J.  Eq.  490. 


Ann.  784.  Or  where  he  gives  an  un- 
authorized and  final  preference  in  pay- 
ing or  distributing  (though  this,  semble, 
should  be  a  case  of  gross  injustice,  and 
not  where  some  reasonable  favor  was 
bestowed  at  discretion).  Foltz  z/.  Prouse, 
17  111.  487.  Or  where  he  is  ignorant  of 
his  duties  and  liable  to  be  imposed 
upon.  Emerson  v.  Bowers,  14  Barb. 
658.  Or  where  he  has  other  interests 
in  positive  conflict  with  the  official  trust. 
Thayer  v.  Homer,  1 1  Met.  104  ;  Hussey 
V.  Coffin,  I  Allen,  354;  148  Mass.  248. 
Waste,  negligence  and  mismanagement 
are  good  grounds  for  removal  as  well 
as  fraud.  3  Nev.  93.  Or  habitual 
drunkenness.  83  Ind.  501.  Or  mis- 
conduct. 104  N.  Y.  103.  And  see 
Peale  v.  White,  7  La.  Ann.  449  ;  Reyn- 
olds V.  Zink,  27  Gratt.  29 ;  64  Md.  399 ; 
4  Dem.  227.  So  is  the  unwarranted 
refusal  to  prosecute  claims  on  behalf  of 
the  estate,  especially  if  the  office  was 
obtained  by  inducing  those  in  interest 
to  believe  that  he  would  prosecute. 
Kellberg's  Appeal,  86  Penn.  St.  129. 
Or  for  squandering  the  estate.  New- 
comb  V.  Williams,  9  Met.  525.  As  to 
removing  an  executor  for  "  improvi- 
dence "  under  the  New  York  code,  see 
Freeman  v.  Kellogg,  4  Redf.  (N.  Y.) 
218.  And  see  40  Hun,  291  ;  Gray  v. 
Gray,  39  N.  J.  Eq.  332.  Refusal  to 
bring  a  suit  which  may  reasonably  be 
supposed  to  bring  in  assets  for  creditors 
has  been  treated  as  ground  for  remov- 
ing an  administrator.  137  Mass.  547. 
And  as  to  misconduct  with  regard  to  his 
bond,  see  3  Dem.  542  ;  63  Tex.  396.  So 
where  one  fraudulently  induces  his  ben- 
eficiary to  sell  out  to  him.     37    N.  J. 

Eq-  535- 

But  it  is  no  cause  for  removal  that 
the  executor  or  administrator  declines  to 


220 


CHAP.  VI.]       REVOCATION  OF  LETTERS,  ETC.  §  '55 

operated  when  the  appointment  was  made,  but  that  it  operates 
at  the  time  of  the  complaint.' 

Non-residence  or  the  permanent  absence  of  an  executor  or 
administrator  is  made  a  specific  cause  of  removal  by  our  local 
statutes  under  various  circumstances  ;  as  where  such  fiduciary 
neglects,  on  citation,  to  render  his  accounts  and  settle  the  es- 
tate ;  or  where  one  moves  out  of  the  State  without  having  settled 
his  accounts,  or  without  appointing  an  attorney,  or,  as  held  in 
some  States,  if  he  be  a  non-resident  at  all.^  On  the  marriage 
of  a  sole  executrix  or  administratrix,  her  authority  as  such  ceases  ; 
and  our  statutes  provide  for  the  grant  of  administration  dc  bonis 
non  in  such  a  case.^  But  removal  from  the  jurisdiction  does  not 
ipso  facto  operate  a  revocation  of  letters  ;  for  due  proceedings  for 
making  a  vacancy  should  be  instituted. •♦ 

§155-  Procedure  in  Case  of  Revocation  of  Appointment  or  Re- 
moval from  Office.  —  Where  one  has  been  regularly  appointed, 
he  is  not  bound  to  propound  his  interest  in  such  proceedings 
until  the  party  calling  it  in  question  has  established  his  own  posi- 
tion.5  And  the  first  duty  of  the  appellant  from  a  decree  in  pro- 
bate is  to  show  affirmatively  his  right  to  appeal  ;  for,  until  this  is 

'  Drake   v.    Green,     lo    Allen,     124.  38  Ark.  393.     See  Berry  v.  Bellows,  30 

Cf.  Lehr  v.  Turball,  3  Miss.  905.  Ark.  198.      As  to  suspension,  under  lo- 

^  Mass.  Gen.  Stats,  c.  loi,  §  2  ;  Har-  cal  statute,  see  122  Cal.  379. 
ris  z^.  Dillard,  31  Ala.  191  ;  local  codes.         ^  Mass.  Gen.  Stats,  c.   loi,  §§  i,  4; 

One  temporarily  absent  may  often  dele-  Whitaker  v.    Wright,    35     Ark.    511  ; 

gate  his  trust   by  power  of   attorney ;  Duhme  v.  Young,  3  Bush,  343 ;  Kava- 

yet  temporary  absence  to  the  detriment  naugh    v.    Thompson,     16    Ala.    817  ; 

of  the   estate  might  furnish  cause  for  Teschemacher   v.   Thompson,   18    Cal. 

removal.      Mere    non-residence   or   ab-  211.     But  as  to  the  effect  at  common 

sence  is  not   necessarily  a  disqualifica-  law  of  joining  her  husband  in  the  trust, 

tion /fr  j-i?,  or  cause  for  removal,  unless  see   Schoul.   Hus.  &  Wife,   §    163.     A 

the  statute  so  provides.     Walker  z-.  Tor-  formal  revocation    of  authority  or  re- 

rance,  12  Ga.  604;  McDonogh,  Succes-  moval  from  office  is  in  some  States  re- 

sion  of,  7  La.  Ann.  472  ;  4  Dem.  492  ;  Wi-  quired  before  the  wfe  ceases  to  be  the 

ley  V.  Brainerd,  11   Vt.    107;  Cutler  v.  de  facto  and  de  jure  incumbent  of  the 

Howard,  9  Wis.  309.     And  though  ab-  office.  Fryef.  Kimball,  16  Mo.  9;  Yates 

sence  from  the  State  mayor  may  not  be  v.  Clark,  56  Miss.  212  ;  70  Cal.  343  ;  94 

cause  for  removal,  the  administration  is  Cal.  357. 

not  meantime  vacant,  and  a  new  ap-         ''  Railroad    Co.    v.    McWherter,    59 

pointment  cannot  be  made  until  the  va-  Kan.  345  ;   and  see  §  160. 
cancy  is   made.     Hooper    v.    Scarbor-         ^  Phillim.  155,  166. 
ough,  57  Ala.  510;  McCreary  v.  Taylor, 

32J 


§  155 


EXECUTORS    AND    ADMINISTRATORS. 


[part  II. 


done,  or  the  right  admitted  by  the  opposite  side,  the  merits  of  the 
appeal  will  not  be  entertained.'  An  executor  or  administrator  is 
entitled  to  notice  and  a  reasonable  opportunity  to  appear  and 
defend  himself  in  all  cases  of  complaint  before  he  can  be  prop- 
erly removed  or  his  letters  revoked ;  ^  and  if  his  failure  to  file  a 
bond  or  increase  his  security  be  the  cause  of  removal,  it  should 
appear  that  he  was  allowed  fair  time  to  comply  with  the  order 
of  the  court  and  failed  to  do  so.^  At  the  hearing  for  his  re- 
moval, as  well  as  for  the  revocation  of  a  probate  decree,  both 
petitioner  and  respondent  may  offer  evidence  pertinent  to  the 
issue ;  and  either  party  may  appeal  from  the  decree  of  the  court 
making  or  refusing  to  make  the  removal. •» 

An  executor  or  administrator  removed  from  office  should  set- 
tle his  accounts  in  court  and  turn  over  the  estate  to  his  succes- 
sor without  delay ;  otherwise,  he  and  his  sureties  may  be  pur- 
sued.-^   Discharge  from  office  relieves  from  further  responsibility. 


'  Pettingill  7'.  Pettingill,  60  Me.  419. 
Statutes  concerning  removal  sometimes 
require  the  petitioner  to  show  an  inter- 
est in  like  manner.  Vail  v.  Givan,  55 
Ind.  59. 

^  Murray  v.  Oliver,  3  B.  Mon.  1.  But 
the  executor  or  administrator  may  waive 
notice  by  his  voluntary  appearance. 
Ferris  z/.  Ferris,  89  111.  452. 

*  Wingate  v.  Wooten,  5  .Sni.  &  M. 
245. 

■•  See  Smith  (Mass.)  Prob.  Pract.  99  ; 
Bailey  v.  Scott,  13  Wis.  618.  Concern- 
ing the  method  of  applying  for  the  revo- 
cation of  letters  or  probate,  or  for  the 
removal  of  an  executor,  administrator, 
or  other  probate  functionary,  numerous 
late  decisions  are  found.  The  local 
statute  usually  enters  fully  into  the  de- 
tails of  such  proceedings.  Removal 
cannot  be  demanded  by  way  of  opposi- 
tion, but  if  at  all  it  must  be  by  direct 
proceedings  with  petition  and  citation. 
Boyd,  Succession  of,  12  La.  Ann.  611. 
But  as  to  allegations  in  the  petition,  see 
<  Neighbors  v.  Hamlin,  78  N.  C.  42.     > 

Implied  revocation  of  one's  authority 

22 


by  such  judicial  acts  as  a  new  appoint- 
ment is  in  some  States  permitted,  even 
though  the  reason  for  revocation  or  re- 
moval arose  subsequently  to  the  ap- 
pointment. Berry  v.  Bellows,  30  Ark. 
198  ;  Bailey  r-.  Scott,  13  Wis.  618.  But 
the  more  correct  practice  discounte- 
nances implied  revocations.  See  supra, 
§  152.  As  to  superseding  a  general 
administrator  by  the  simple  probate  of 
a  will,  and  the  appointment  of  executor 
or  administrator  with  the  will  annexed 
without  a  removal,  etc.,  see  McCauley 
V.  Harvey,  49  Cal.  497.  An  incumbent 
administrator's  acceptance  of  a  grant  of 
administration  de  bonis  71011  jointly  with 
another,  held  equivalent  to  resigning 
the  former  trust.  Turner  v.  Wilkins, 
56  Ala.  173. 

'  See  Aldridge  v.  McClelland,  34 
N.  J.  Eq.  237;  West  v.  Waddill,  ^t, 
Ark.  575 ;  Schlecht's  Estate,  2  Brews. 
(Pa.)  397 ;  Hood  Re,  104  N.  Y.  103. 
The  court  may  settle  the  accounts  of  a 
removed  fiduciary,  at  discretion,  with- 
out appointing  a  successor.  68  Hun, 
(N.  Y.)  114. 
2 


CHAP.  VI.]       REVOCATION  OF  LETTERS,  ETC.  §  1 56 

but  not  from  the  consequences  of  malfeasance  and  neglect  while 
in  office.  One  discharged  for  pressing  cause,  such  as  the  in- 
solvency of  himself  and  his  sureties  (which,  properly  speaking, 
constitutes  ground  for  removal),  is  not  relieved  from  the  obliga- 
tion to  account  ;  while  the  interests  of  an  estate  may,  of  course, 
require  one  to  be  thus  discharged,  or,  in  general,  removed,  be- 
fore any  accounting  at  all.' 

§  156.    Resignation    of   Executor    or    Administrator. — Removal 

without  cause  shown,  or  by  way  of  favor  to  the  incumbent, 
would  be  improper.  For  such  cases,  and  as  a  gentler  means  of 
vacating  an  office  unsuitably  filled,  our  statutes  further  provide 
the  opportunity  for  a  fiduciary  officer  to  resign.  Thus,  in  Mas- 
sachusetts, it  is  enacted  that,  upon  the  request  of  an  executor 
or  administrator,  the  probate  court  may,  in  its  discretion,  allow 
him  to  resign  his  trust ;  but  the  party  applying  for  leave  to  re- 
sign should  present  his  administration  account  to  the  court  with 
his  petition  ;  nor  will  his  request  be  allowed  until  his  accounts 
are  settled,  after  such  notice  to  the  parties  interested  as  circum- 
stances may  require."  An  executor  or  administrator  who  has 
already  qualified  has,  however,  been  permitted  to  terminate  his 
trust  before  he  has  taken  actual  possession  of  the  assets  or  at- 
tempted to  exercise  any  control  whatever  over  the  estate ;  in 
which  case,  the  acceptance  of  his  resignation  may  be  followed, 
as  usual,  by  the  appointment  of  a  successor.^ 

The  correct  settlement  of  one's  accounts,  and  transfer  of  the 
balance  as  the  court  may  direct,  is  the  usual  condition  upon 
which  resignation  is  permitted.  And  where  there  is  a  personal 
trust  reposed  in  an  executor  under  the  will,  he  should  not  be 
discharged  until  he  has  performed  that  duty ;  ^  nor,  in  general, 

'Union  Bank  v.  Poulson,  31   N.   J.  In  English  practice  an  executor  is  per- 

Eq.  239.     See  64  Ala.  545.  mitted  to  renounce  probate  even  after 

*  Mass.  Gen.  Stats,  c.  loi,  §  5  ;  Thayer  he  has  taken  the  oath  of  office,  if  he  has 

V.  Homer,  11  Met.  144.     See  also  local  not  already  taken  possession  or  control, 

codes;  Haynes  v.  Meek,  10  Cal.   no;  3   Hagg.   216;    Wms.   Exrs.   276,   281. 

Carter  z'.  Anderson,  4  Ga.  516;  Cole-  And  see  Mitchell  tA  Adams,  i  Ired.  298. 
man  v.   Raynor,    3   Cold.   (Tenn.)    25;         -t  Lott  57.  Meacham,  4  Fla.   144;  Van 

Morgan  v.  Dodge,  44  N.  H.  258.  Wyck,  Matter  of,  i  Barb.  Ch.  565. 

^Comstock  V.  Crawford,  3  Wall.  396. 

223 


§157  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

ought  one's  resignation  to  be  accepted  regardless  of  the  detri- 
ment which  the  estate  may  suffer  in  consequence.' 

v5  I  5  7.  Jurisdiction,  in  general,  as  to  Revocation,  Removal,  and 
Accepting  a  Resignation. —  Revocation  of  letters  or  a  probate  ap- 
pears to  be  a  different  thing  from  the  creation  of  a  vacancy  in 
the  office  by  death,  removal,  or  resignation,  though  the  books 
do  not  keep  this  distinction  clear.  As  a  general  rule,  where  the 
probate  court  has  once  regularly  conferred  the  appointment,  it 
cannot  remove  the  incumbent  afterwards  except  for  causes  de- 
fined by  statute.-  Nor,  if  precedents  may  be  trusted,  can  an 
e.xecutor  or  administrator,  who  has  once  fully  accepted  and  en- 
tered upon  his  trust,  resign  it  unless  the  statute  permits  him  to  ; 
for  the  English  rule  always  discountenanced  such  a  practice,  as 
to  these  and  similar  fiduciaries.  ^  Other  courts,  therefore,  having 
equity  powers,  must  incline  to  exercise  them  in  restraint  of  the 
probate  appointment,  where  the  probate  courts  have  no  plenary 
jurisdiction  to  remove  or  accept  the  resignation  of  an  executor 
or  administrator  ;  appointing,  it  may  be,  a  receiver  of  their  own, 
and  temporarily  restraining  the  authority  of  an  executor,  in  an 
emergency.^  So,  too,  English  practice  appears  to  enlarge  the 
right  of  revocation,  in  default  of  the  power  to  remove  ;  for,  as 
the  books  say,  administration  may  be  revoked  if  a  next  of  kin 
to  whom  it  has  been  committed  becomes  non  compos  or  otherwise 

■4Dem.  162.     See  14  Atl.  808.  M    Ventr.    335;    Wms.    Exrs.    281; 

=  Muirhead  v.  Muirhead,  6  Sm.  &  M.  Haigood  v.   Wells,  i    Hill   (S.  C.)   Ch. 

451.     Citation  or  notice  of  proceedings  59;  Sears  r'.  Dillingham,  12  Mass.  358 ; 

to  interested  parties  ought  to  be  a  pre-  Sitzman   v.    Pacquette,    13    Wis.    291  ; 

liminary  to  discharging  one  who  wnshes^  Washington  v.  Blunt,  8  Ired.  Eq.  253.  ) 

to  resign.     50  Mich.   22;  67   Ga.  227;  As  to  guardians,  see  Schoul.  Dom.  Kel. 

37  N.  J.  Eq.   521.     And  only  for  cause  §  315- 

and  after  notice  and  opportunity  to  be  *  Long  v.  Wortham,  4  Tex.  381  ;  Led- 

heard  should  one  be  removed.    Levering  dell  ?'.  Starr,  4  C.  E.  Green,  159.     See 

z/.  Levering,  64  Md.  399.    But  a  decree  of  Cooper  7/.  Cooper,  5  N.  J.  Eq.  9;\W^il- 

discharge  regular  and  legal  on  its  face  kins  v.  Harris,  i  Wms.  (N.  C.)  Eq.  4TN 

and  never  challenged  is  not  to  be  set  As  to  restraining   an    executor  who 

aside  after  twenty  years  merely  because  has  become  bankrupt  since  his  appoinl- 

some  interested  party  was  a  minor  when  ment,  see  Bower  v.   Phillips,  (1897)  i 

the  decree   was   rendered.      102    Penn.  Ch.  174. 
St.  258.     And  see  63  Cal.  473. 

224 


CHAP.  VI.]       REVOCATION  OF  LETTERS,  ETC.  §  1 59 

incapable,  and  perhaps,  too,  if  he  goes  beyond  sea.'  But  in  our 
later  American  practice  the  court  of  original  probate  jurisdic- 
tion is  the  most  suitable  tribunal  in  the  first  instance  for  revok- 
ing such  appointments,  for  removing  or  accepting  resignations, 
and,  in  general,  for  regulating  the  succession  in  the  office  of 
executor  or  administrator ;  and  to  such  courts  the  statute  au- 
thority chiefly  relates.^ 

§  1 5  8.  Natural  Termination  of  an  Executor's  or  Administrator's 
Authority.  —  The  death  of  an  executor  or  administrator,  leav- 
ing his  trust  unperformed,  gives  occasion,  of  course,  to  the 
appointment  of  a  successor  ;  and  death  in  any  event  terminates 
his  own  functions  ;  his  estate  continuing  liable  for  any  mal- 
administration on  his  part  while  in  office.  It  is  not  usual  to 
discharge  such  an  officer  formally,  even  though  his  trust  be  fully 
performed  ;  but  on  the  approval  of  his  final  account,  no  appeal 
being  taken,  and  the  final  distribution  of  the  estate,  it  may  at 
all  events  be  presumed  that  his  functions  have  reached  their 
•natural  end.^ 

§  1 5  9.  Delegation  of  Authority  does  not  relieve ;  but  Super- 
aedure  does.  —  An  executor  or  administrator  cannot,  by  delega- 
tion of  his  own  authority,  avoid  any  of  the  liabilities  imposed  on 


'  Bac.  Abr.  Exrs.  etc.  E ;  Wms.  Exrs.  ^See  Waters  z'.   Stickney,   12   Allen, 

579.      And   yet   revocation,    so    called,  15;  iLedbetter    v.    Lofton,     i    Murph.) 

appears  to  involve  in  probate  the  idea  (N.    C.)     224;    Hosack  z/.    Rogers,    n 

of  vacating  that  which  was   originally  Paige,   603 ;  Chew   v.    Chew,  3   Grant 

void  or  voidable  and  clogged  at  the  out-  (Pa.)  289  ;  Wilson  v.  Frazier,  2  Humph, 

set.     Thus,  the  appointment  of  one  al-  30.     In  New    Jersey,    where   chancery 

ready  non  compos,  like  the  probate  of  a  courts  exercise  similar  powers  with  those 

will  which  was  not  really  the  last  one,  of  England,  it  is  held  that  the  court  of 

is  based  upon  some  fundamental  error;  probate  alone  can  remove  an  executor; 

the  decree  never  should  have  been  en-  but  that  chancery  may  intervene,  as  to 

tered.     But  if  an  appointment  be  regu-  the  functions  of  trustee,  where  these  are 

larly  made,  while  one  is  sane  and  com-  exercised  also  by  the  executor,  and  also 

petent,    his    subsequent    incompetency  enjoin  the  executor  from  acting  where 

does  not  invalidate  the  original  decree  he  is  likely  to  abuse  his  authority.  Led- 

more  than  his  subsequent  misconduct;  dell  v.  Starr,  4  C.  E.  Green,  159. 

the  decree  was  good,  but  the  case  calls  ^  See  post  as  to  distribution  and  ac- 

later  for  removal  from  office.     See  post,  counts.     Under  the  Louisiana  code  of 

effect  of  revocation.  1808,  the  office  of  testamentary  executor 
15                                              225 


§    l60  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

him  by  law.'  But  it  is  otherwise,  where  a  court  having  jurisdic- 
tion supersedes  his  authority,  and  vests  the  new  appointee  with 
his  functions. 

§  I  6q.  The  Effect  of  Probate  Decrees ;  Collateral  Attack,  etc. 
—  Concerning  the  legal  effect  of  the  revocation  of  probate  or 
letters  on  the  intermediate  acts  of  the  former  executor  or  ad- 
ministrator, a  distinction  is  made  in  the  books  between  grants 
void  and  voidable.  A  grant  utterly  void  and  without  jurisdic- 
tion, as  in  the  case  of  admmistration  upon  the  estate  of  a  living 
person,  gives  no  shelter  to  the  acts  of  the  appointee ;  and  revo- 
cation in  such  case  appears  to  be  only  for  the  sake  of  correcting 
the  records  and  preventing  further  mischief.-  The  grant  of 
administration  on  the  estate  of  a  decedent,  while  a  will  was  in 
existence,  being  for  a  time  concealed,  is  treated  as  void  with 
similar  consequences  ;  ^  and  so,  too,  is  it,  we  may  presume,  where 
the  grant  was  under  a  certain  will,  and  a  later  will  came  to  light 
afterwards,  conferring  the  executorship  elsewhere,  and  making 
a  different  disposition  of  the  estate.'*  The  sale  or  collection  of 
one's  property  under  such  circumstances,  by  the  wrongful  rep- 
resentative, may  (subject  to  the  usual  exceptions  in  favor  of 
bona  fide  third  parties,  and  negotiable  instruments)  be  avoided 
by  the  living  person  who  was  supposed  dead,  or,  as  the  case  may 

expired  at  the  end  of  the  year,  unless         ^  See  English  case  of  Graysbrook  v. 

the  will  expressed  otherwise  or  the  term  Fox,  Plowd.  276  ;  V\'ms.  Exrs.  586,  587. 

of  ofifice  was  prolonged  by  the  judge.  Not  necessarily,  however,  where  the  will 

Deranco  ?'.   Montgomery,   13   La.  Ann.  was  foreign,  and  local  jurisdiction  arose 

513.  because  of  local  assets.     Shephard  7'. 

'Driver    v.    Riddle,   8    Port.    (Ala.)  Rhodes,  60  111.  301.     See  ne.xt  page. 
343;  Bird  V.  Jones,  5  La.  Ann.  645.  "  Woolley  v.  Clark,  5  B.  &  Aid.  744. 

^In  Jochumsen  v.  Suffolk  Savings  A  similar  fatal  consequence  has  been 
Bank,  3  Allen,  87,  the  living  depositor  held  to  attend  the  grant  of  letters  by  an 
was  allowed  to  sue  for  his  deposit,  not-  interested  judge.  Gayz/.  Minot,  3  Cush. 
withstanding  an  administration  had  been  352.  Scd  i/ii.,  unless  a  statute  is  explicit 
granted  on  due  presumption  of  his  death,  on  this  point.  See  Aldrich,  Appellant, 
and  payment  was  made  to  such  admin-  no  Mass.  193;  Moses  v.  Julian,  45 
istrator.  And  see  Burns  v.  Van  Loan,  N.  II.  52.  Where  a  will  admitted  to 
29  La.  Ann.  560 ;  Moore  v.  Smith,  1 1  probate  is  declared  void  on  appeal,  let- 
Rich.  569 ;  Devlin  v.  Commonwealth,  ters  under  the  will  cannot  issue  prop- 
101  Penn.  .St.  273;  Scott  v.  McNeal,  erly.  (  Smith  7/.  Stockbridge,  39  Md. 
154  U.  S.  34.  640;  3  Ired.  557.  J 

226 


CHAP.  VI.]       REVOCATION  OF  LETTERS,  ETC.  §  1 6o 

be,  by  the  rightful  representative  of  his  estate  duly  appointed  ; 
trover  or  detinue  for  the  property  may  be  maintained,  or  as- 
sumpsit for  the  money  produced  (the  tort  being  waived),  as  so 
much  money  received  to  the  use  of  the  rightful  party.'  Nor  is 
it  certain  how  far  the  defendant  thus  sued  shall  be  permitted  to 
recoup,  by  way  of  offset,  payments  made  in  due  course  of  ad- 
ministration, or  for  debts  which  were  lawfully  due  from  the  sup- 
posed decedent  or  his  estate ;  though,  doubtless,  such  recoup- 
ment is  to  some  extent  proper.- 

Where,  however,  the  grant  was  voidable  only,  as  in  case  letters 
of  administration  are  issued  by  a  competent  court  to  a  party  not 
entitled  to  priority,  and  without  citation  of  those  so  entitled  or 
their  renunciation,  all  the  lawful  and  usual  acts  of  the  appointee 
performed  meanwhile,  and  not  inconsistent  with  his  grant,  shall 
stand  good  until  the  authority  is  revoked.^  If,  after  adminis- 
tration has  been  granted,  a  will  is  produced  for  probate,  acts 
performed  under  the  grant  in  good  faith  and  beneficially  are 
sometimes  held  valid.'' 

It  has  been  laid  down,  and  quite  broadly,  that  a  payment 
bona  fide  made  to  2iX\y  de  facto  executor  or  administrator,  ap- 
pointed by  a  court  of  competent  jurisdiction,  will  discharge  the 
debtor.5  This  rule  has  been  applied  to  the  case  of  a  probate 
which  was  afterwards  declared  null,  because  of  a  forged  will ; 
and  upon  the  sensible  reasoning  that  the  debtor  cannot  contro- 
vert the  title  of  the  executor,  who  presses  him,  so  long  as  the 
probate  remains  unrepealed,  nor  possess  himself  of  the  means 
of  procuring  such  repeal.^     Statutes  now  in  force  confirm  and 

'  Lamine  v.   Dorrell,    2    Ld.    Raym.  qualified  by  giving  the  statute  bond  is 

1 216;  Woolley  V.  Clark,  5   B.  &  Aid.  void.     Bradley   v.    Commonwealth.    31 

744 ;    Dickinson  v.   Naul,  4  B.  &  Ad.  Penn.   St.  522.     In  such  case  the  ap- 

638;  Wms.  Exrs.  587.  pointment  perhaps  was  never  completed, 

^  In  Graysbrook  v.  Fox,  Plowd.  276,  properly  speaking.     Supra,  §  153. 

it  was  ruled  that  if  the  sale  had  been  ^  Wms.   Exrs.  588,  and  cases  cited; 

made  to  discharge  funeral  expenses  or  Kelly  z/.  West,  80  N.  Y.    139;  Pick  v. 

debts  which  the  executor  or  adminis-  Strong,  26  Minn.  303. 

trator  was  compelled  to  pay,  the  sale  >■  Kittredge  v.  Folsom,  8  N.  H.  98; 

would  have  been  indefeasible  forever.  Kane  v.   Paul,   14   Pet.   t^i;  Bigelow  z/. 

But  cf.  Woolley  v.  Clark,  5  B.  &  Aid.  Bigelow,  4  Ohio,  138. 

744;  Wms.  Exrs.   271,   588.     And  see  '  Wms.  Exrs.  590,  and  cases  cited. 

post  as  to  executors  de  son  tort,  c.  8.  ''  Allen  v.  Dundas,  3  T.  R.  125 ;  Best, 

A  grant  of  letters  to  one  who  has  not  J.  in  Woolley  v.  Clark,  5  B.  &  Aid.  746. 

227 


§    l60  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

enlarge  the  validity  of  payments  made  bona  fide  to  any  executor 
or  administrator,  under  a  i:)robate  or  administration  afterwards 
revoked,  if  made  before  revocation;  declaring  such  pa)ment  to 
be  a  legal  discharge  to  the  person  making  it.' 

After  revocation  or  the  removal  of  an  executor  or  adminis- 
trator from  office,  or  the  acceptance  of  his  resignation,  he  can- 
not complete  a  sale  which  he  had  been  negotiating  on  behalf  of 
the  estate;^  nor  collect  assets;^  nor  carry  on  or  defend  a  suit 
in  his  official  capacity ;  •♦  nor  in  general  exercise  the  functions 
of  his  late  office. 

English  and  American  statutes  in  modern  times  aim  to  cor- 
rect the  legal  mischief  of  overturning  acts  performed  in  good 
faith  and  pursuant  to  a  probate  or  letters  of  appointment  after- 
wards set  aside  for  cause.  Apart  from  any  right  to  recoup  for 
funeral  and  other  lawful  debts  of  the  deceased,  it  is  expressly 
provided  by  the  English  Act  20  &  21  Vict.  c.  'jj,  that  the 
executor  or  administrator  who  shall  have  acted  under  a  revoked 
probate  or  administration  may  retain  and  reimburse  himself  in 
respect  of  any  ])aymcnts  made  by  him  which  the  person  to  whom 
probate  or  letters  of  administration  are  afterwards  granted  might 
have  lawfully  made.  American  legislation  is  also  found  provid- 
ing for  the  relief  of  the  parties  affected,  in  cases  where  the 
appointment  of  an  executor  or  administrator  shall  be  vacated 
or  declared  void  afterwards. 5  And  the  rule  to  be  favored 
at  the  present  day  is,  that  all  acts  done  in  the  due  and  legal 
course  of  administration  are  valid  and  binding  on  all  interested, 
even  though  the  letters  issued  by  the  court  be  afterwards  re- 

'  Stat.   20  &   21    Vict.   c.  77;  Wms.  Exrs.  592.      Judgment  cannot   be  ren- 

Exrs.  591,  592 ;   Hood  7a  Barn ngton,  L.  dered  against   a   displaced  executor  or 

R.  6  Eq.  222.  administrator.     Wms.  Exrs.  594;  Wig- 

^  Owens  V.  Cowan,  7  B.  Mon.  152.  gin  v.  Plummer,  31  N.  H.  251  ;  National 

'  Stubblefield  v.  McRaven,  5  Sm.  &  Bank  v.  Stanton,  116  Mass.  435;  26 
M.  130.  He  may  be  enjoined  from  do-  Tex.  530.  But  removal  from  a  trustee- 
ing so  by  a  court  of  chancery.  Stub-  ship  is  not  necessarily  a  removal  from 
blefield  v.  McRaven,  ib.  the  executorship.     22   Hun,  86.     Stat- 

*  P'ormerly  such   a  suit   would  have  utes  control  this  subject  which  regard 

abated,  unless  judgment   had  been  ob-  the  interests  of  the  estate.     Ib. 
'ained  by  such  executor  or  administra-         ^  Wms.  Exrs.  592;  McFeely  z/.  Scott, 

tor,  but  modern  practice  acts  avoid  such  128  Mass.  16.     And  see  3  Wash.  C.  C. 

inconvenience    to    the    estate.     Wms.  122. 

228 


CHAP.   VI.]  REVOCATION*    OF    I.?:TTERS,    ETC.  §    l6o 

voked  or  the  incumbent  discharged  from  his  trust.'  And 
although  one's  appointment  as  executor  or  administrator  may 
have  been  erroneous,  or  voidable,  the  safer  doctrine  is,  that  the 
letters  and  grant  issued  from  the  probate  court  shall  not  be  at- 
tacked collaterally  where  the  court  had  jurisdiction  at  all,  and 
least  of  all  by  common-law  courts;-  and  that  the  acts  of  the 
representative  de  facto  shall  bind  the  estate  and  innocent  third 
parties.  Statutes  extend  this  principle  to  cases  where  there 
was  no  jurisdiction,  provided  no  want  of  jurisdiction  appear  of 
record ;  ^  thus,  in  fine,  discouraging  collateral  issues  of  fact  upon 
a  grant  of  authorit}-  which  appears  regular  on  its  face,  and  mak- 
ing such  decrees  voidable,  in  effect,  until  vacated,  and  not  utterly 
void,  if  at  all  events  there  was  a  dead  person's  estate.  And  a 
similar  rule  applies  to  the  probate  decree  which  discharges  an 
appointee  or  revokes  his  appointment. ■♦ 

But  the  grant  of  letters  by  a  local  probate  court,  having  no 
jurisdiction  of  the  person  or  subject-matter,  will  not  bind  the 
competent  probate  tribunal ;  which  latter  tribunal  may  proceed 
to  grant  letters,  though  the  void  grant  by  the  former  tribunal 
be  not  revoked. 5     So,  administration  granted  upon  the  estate 

'  Foster  v.   Brown,   i    Bailey  (S.  C.)  9  Leigh,  119;  Morgan  v.  Locke,  28  La. 

221;  Brown   v.    Brown,    7    Oreg.   285:  Ann.  806;  Taylor  v.  Hosick,  13  Kan. 

Shephard  z/.  Rhodes,  60  111.  301.     As  to  518;  Hart  v.   Bostwick,   14   Fla.   162; 

a  public  administrator  whose  office  has  Burnett  v.  Xesmith,  62  Ala.  261  ;  Pick 

expired,  see  Rogers  v.   Hoberlein.    1 1  v.    Strong,    26    Minn.    303 ;  Wright    v. 

Cal.  120;  Beale -■.  Hall,  22  Ga.  431.  Wallbaiim,  39  111.  554 ;  59    Kan.  345; 

As  between  revocation  of  an  appoint-  Bradley  v.  Missouri  R.,  51   Neb.  653; 

ment  and  the  creation  of  a  vacancy  by  Strong's  Estate,  119  Cal.  663;  51  Neb. 

death,  removal,  or  resignation,  it  would  596.     And  especially  not  by  a  person 

appear  on  principle  that,  in  the  former  not    "interested"   in   legal  contempla- 

instance.   further    proceedings    are    de  tion.     Taylor  v.  Hosick,    13  Kan.  518. 

novo,  giving  rise  to  an  original  appoint-  Nor  by  a  debtor  sued.     107  Iowa,  384. 

ment  by  new  letters ;  while,  in  the  lat-  In  collateral  proceedings  a  probate  court 

ter,  there  arises  successorship,  and  the  may  disincline  to  treat  the  letters  issued 

proper   appointment    for    the    vacancy  as  void  on   merely  defective    recitals, 

should  be  by  letters  de  bonis  non.     See  146  111.  40. 

Callahan   v.    Smith,    T.    U.  P.   Charlt.         ^  ^IcFeely  v.   Scott,    128   Mass.    16; 

(Ga.)  149.  Record  v.  Howard,  58  Me.  225. 

^  Peters  z/.  Peters,  8  Cush.  542;  Wms.         *  Simpson  z-.  Cook,    24    Minn.    180; 

Exrs.  549;  2  Vem.   76;  3  T.  R.  125;  Bean  7/.  Chapman,  62  Ala.  58. 
Boody    V.    Emerson,     17    N.    H.    577;         '  Barker,  Ex  parte.    2    Leigh,    719: 

Clark  V.  Pishon,  31  Me.  503;  Naylor  v.  King's  Estate,  105  Iowa,  320. 
Moffatt.  29  Mo.  1 26 ;  Fisher  v.  Bassett, 

229 


§    l6o  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

of  a  person  actuall}'  alive,  no  matter  upon  what  bona  fide  suppo- 
sition of  his  death,  may  be  treated  by  him  as  utterly  void,  and 
the  disposition  of  his  property  overturned.'  And  doubtless  the 
appointment  of  an  administrator  may  be  attacked  collaterally 
by  a  party  sued  where  the  record  on  its  face  discloses  an  entire 
want  of  jurisdiction  by  the  county  court  to  act  in  the  premises.^ 

The  conclusiveness  of  probate  decrees  is  deducible  from  such 
exclusive  jurisdiction  as  may  be  conferred  upon  probate  courts 
to  decide  on  the  validity  of  wills,  to  grant  administration,  and 
to  supervise  the  settlement  of  the  estates  of  deceased  persons. 
And  according  as  the  local  statute  may  extend  or  limit  this 
special  jurisdiction,  so  must  the  effect  of  such  decrees  be  de- 
termined. Probate  courts  are  usually  made  courts  of'  record, 
and  treated  as  courts  of  general  jurisdiction  on  all  subjects  per- 
taining to  their  peculiar  functions. ^ 

Formerly,  in  the  English  ecclesiastical  practice,  probate  did 
not  authenticate  a  will  of  real  estate;''  but  in  England  and 
most  American  States,  at  the  present  day,  the  statute  jurisdic- 
tion of  courts  of  probate  extends  to  wills  of  both  real  and  per- 
sonal property  without  distinction. ^  The  decision  of  such  a 
court  is  final,  unless  appealed  from   in  plenary  jM'oceedings  re- 

■  Scott  V.  McNeal,   154  U.  S.  34  and  the  want  of  jurisdiction  in  the   court 

cases  cited ;  §  92.     But  a  decree  of  dis-  which  issued  them.     And   no  one  can 

tribution  made  in  case  of  a  fairly  pre-  intervene  in  the  affairs  of  an  estate  un- 

sumed  death  may  protect  a  representa-  less  he  is  either  personally  interested  or 

tive.     84  Md.  557.  else  authorized  to  do  so  by  law.     Breen 

^  Elgutter  V.   Missouri    R.,    53    Neb.  v.  Pangborn,  51  Mich.  29. 
748.  One  sued  by  an  administrator  is  not 

3  Waters  v.  Stickney,  12  Allen,  3;  authorized  to  petition  the  probate  court 
Stearns  v.  Wright,  51  N.  H.  609,  and  to  revoke  the  plaintiff's  letters.  Mis- 
cases  cited;  Veach  v.  Rice,  131  U.  S.  souri  Pacific  R.  v.  Jay,  53  Neb.  747. 
293.  That  the  administrator  appointed  Nor  can  he  set  up  collaterally  that  such 
was  not  a  citizen  is  not  good  ground  of  administrator  was  a  minor,  hence  im- 
collateral  attack,  67  Ga.  103;  nor  gen-  properly  appointed.  Davis  v.  Miller, 
erally,  if  the  judge  has  acted  within  his  109  Ala.  589  ;  Railway  Co.  v.  McWher- 
jurisdiction  as   to   subject-matter,    can  ter,  59  Kan.  345. 

the  validity  of  the  letters  be  thus  im-         ■•  2   Campb.  389 ;  Carroll   v.  Carroll, 

peached.     And  see   12   Or.   108.     The  60  N.  Y.  125. 

Michigan  rule  is  that  whatever  may  be         '  See  English  Court  of  Probate  Act, 

the  immunity  of  letters  of    administra-  1857,  20  &  21  Vict.  c.  77;  supra,  §  8; 

tion    against    attacks    from  strangers,  Parker  7/.  Parker,  11  Cush.  525. 
parties  interested  may  always  object  to 

230 


CHAP.  VI.]       REVOCATION'  OF  LETTERS,  ETC.  §  l6l 

lating  to  a  will's  validity.'  The  probate  or  grant  is  conclusive 
upon  all  persons  interested,  whether  infants,  persons  insane, 
or  absentees ;  provided  citation  was  duly  granted  in  the  prem- 
ises.^ But  the  probate  of  a  will,  while  stamping  it  as  authentic 
and  originally  valid,  does  not  interpret  the  document.^  Probate 
and  letters  furnish  no  proof  of  death  for  the  suits  of  strangers  ;■♦ 
though  to  dispute  thus  an  executor's  or  administrator's  author- 
ity, in  his  own  suit,  should  require  appropriate  pleading,  an 
admission  of  his  authority  being  admission  of  the  death  essen- 
tial to  such  authority,  so  as  to  dispense  with  other  proof.5  Nor 
does  the  legal  conclusiveness  attaching  to  probate  decrees  pre- 
vent proof,  in  a  collateral  suit,  that  the  pretended  decree  in 
question  was  a  forgery,  or  that  the  alleged  appointment  has 
been  revoked;  for  this  is  to  affirm  what  is  of  genuine  probate 
record.'' 

§  l6l.  Effect  of  an  Appeal  from  Decree.  —  The  usual  effect  of 
an  appeal  from  probate,  or  from  one's  appointment  as  executor 
or  administrator,  is  to  suspend  the  authority  conferred  by  such 
appointment  ;  and  pending  such  appeal,  and  until  termination 
of  the  controversy,  it  is  a  special  administrator,  if  any  appointee, 

'  86  Md.  623  (caveat  proceedings).  Benefit  Life  Ins.  Co.  v.  Tisdale,  91  U.  S. 

^  Wms.  Exrs.  565.  Supr.  238 ;  Carroll  v.  Carroll,  60  N.  Y. 

^  Holman  zk  Perry,  4  Met.  492,  497;  121. 

Fallon  v.  Chidester,  46  Iowa,  588.    The  '  Lloyd   t.    Finlayson,     2    Esp.    564 ; 

probate  ascertains  nothing  but  the  orig-  Newman  v.  Jenkins,  10  Pick.  515.     The 

inal  validity  of  the  will  as  such,  and  that  fact  that  one  is  executor  or  administra- 

the  instrument,  in  fact,  is  what  it  pur-  tormay  be  traversed  in  pleading.     Wms. 

ports   on  its   face   to    be.     Fuller,  Ex  Exrs.  560,  561  ;  Plowd.  282. 

parte,  2  Story,  332.  ^i  Stra.  671  ;   Wms.  Exrs.  563. 

"•  The  death  of  the  deceased  is  a  fact  The  judgment  of  a  probate  court  may 
not  usually  passed  carefully  upon  in  be  impeached  for  fraud,  in  a  court  of 
granting  letters,  but  is  rather  assumed  equity  in  a  proper  case.  Anderson  v. 
by  the  probate  court  upon  very  slight  Anderson,  178  111.  160. 
prima  facte  evidence  or  the  petitioner's  There  must  be  an  order  for  letters  to 
allegation.  Hence,  it  is  held,  in  suits  issue,  signed  by  the  judge  or  clerk; 
between  strangers,  as  where  the  -widow  otherwise  the  letters  are  void.  Wirt  v. 
sues  upon  an  insurance  policy  on  the  Pintard,  (La.)  4  So.  14.  For  a  void  de- 
life  of  her  husband,  that  letters  of  ad-  cree  which  did  not  specify  the  estate, 
ministration  issued  upon  his  estate  fur-  see  (Tex.)  7  S.  W.  789. 
nish  no  proof  of   his  death.       Mutual 

2^1 


§    l6l  EXECUTORS    AND    ADMINISTRATORS.  [PART  11. 

who  should  protect  the  estate.'  An  appeal  by  the  executor  or 
administrator  from  a  decree  revoking  his  authority,  leaves  him, 
of  course,  without  authority  and  suspended  in  his  functions.^ 
The  appeal  should  conform  to  objections  raised  below.^ 

■  Wms.  Exrs.  588.     But  an  executor     estate  only.     Byrn  v.  Fleming,  3  Head, 
duly  qualified  upon  probate  of  a  will  in     658. 

common  form  may  continue  to  act,  not-         ^  Thompson  v.  Knight,   23  Ga.  399  ; 
withstanding  an  issue  joined  afterwards     86  Cal.  72. 
testing  the  validity  of  the  will  as  to  real         ^  See  131  N.  Y.  587. 

232 


CHAP.    VII. J     FOREIGN   AND  ANCILLARY   APPOINTMENTS.  §    1 63 


CHAPTER  VII. 

FOREIGN  AND  ANCILLARY  APPOINTMENTS. 

§162.  The  Subject  of  Foreign  and  Ancillary  Appointments  con- 
sidered frequently  in  the  United  States  but  not  in  England.  —  The 
subject  of  foreign  and  ancillary  appointments  is  considered  fre- 
quently, in  connection  with  administration  of  the  estates  of  de- 
ceased persons,  in  the  United  States  ;  but  seldom,  comparatively 
speaking,  in  England.  There  probate  jurisdiction  is  always  do- 
mestic, save  as  to  colonies  and  foreign  countries ;  but  here  it  is 
strictly  domestic  only  in  pertaining  to  some  particular  State. 
A  person  may  be  domiciled  in  one  State  jurisdiction  at  the  time 
of  his  death,  and  yet  leave  property  which  another  State  can 
reach  by  its  own  independent  process,  under  circumstances  jus- 
tifying its  own  territorial  grant  of  administration  ;  and  cases 
may  arise,  though  in  practice  more  rarely,  by  comparison,  where 
there  are  found  local  assets  of  some  foreigner  who  died  testate 
or  intestate,  leaving  an  estate  in  his  own  country  to  be  admin- 
istered. Domestic  probate  jurisdiction  is  here  internal,  in 
other  words,  either  as  respects  other  States  in  the  same  federal 
Union,  or  other  countries.' 

§  163.  What  is  Ancillary  Administration. —  We  have  seen  that 
original  letters  of  administration  may  be  taken  out  upon  the 
estate  of  a  foreigner,  on  the  ground  that  local  assets  are  within 
the  jurisdiction  and  there  is  occasion  for  such  appointment ; 
and  further,  that  the  non-existence  of  known  kindred  will  not 
debar  the  local  probate  court  from  granting  these  letters.  Such 
a  grant,  however,  is  founded  usually  upon  ignorance  of  any  last 
will  of  the  deceased,  or  of  any  probate  or  principal  administra- 

^ Supra,  §§  15-20,  on  the  subject  of  conflict  of  laws. 


§    164  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

tion  duly  granted  in  the  courts  of  his  last  domicile  ; '  hence,  the 
administration  is  looked  upon  as  sufficiently  a  principal  one  for 
the  convenience  of  the  court  and  of  the  sovereign  authority 
which  exercises  jurisdiction  in  the  premises.  But  were  such  a 
foreign  will  or  a  foreign  appointment  of  executor  or  principal 
administrator  known  to  exist,  the  case  would  be  properly  treated, 
in  England  and  the  United  States,  on  the  principles  of  comity ; 
international,  or  inter-State  comity,  as  the  case  might  be.  And 
regarding  the  fundamental  rules  of  comity,  principal  adminis- 
tration is  properly  that  of  the  country  or  State  only  where  the 
deceased  person  had  his  last  domicile  ;  administration  taken  out 
elsewhere,  in  the  country  or  State  where  assets  were  locally  sit- 
uate, being  known  as  aiicillary  (that  is  to  say,  auxiliary  or  sub- 
ordinate) administration.  In  the  course  of  this  treatise  it  will 
be  seen  that  one  who  actually  officiates  as  ancillary  administra- 
tor observes  somewhat  peculiar  rules  as  to  managing  and  set- 
tling the  estate.  And  in  the  j^resent  chapter  we  shall  first 
observe  that  peculiar  rules  guide  the  court  with  respect  to  the 
character  and  method  of  making  the  ancillary  appointment.^ 

§  164.  Letters  Testamentary  or  of  Administration  have  no 
Extra-territorial  Force.  —  The  first  proposition  to  be  laid  down, 
with  reference  to  foreign  and  domestic,  principal  and  ancillary 
administration,  is  that,  according  to  the  recognized  law  both  of 
England  and  the  United  States,  letters  granted  abroad  confer, 
as  such,  no  authority  to  sue  or  be  sued,  or  to  exercise  the  func- 
tions of  the  office  in  another  jurisdiction  ;  though  they  may  af- 
ford ground  for  specially  conferring  a  probate  authority  within 
such  other  jurisdiction  ;  and  the  same  person  sometimes  quali- 
fies as  principal  and  ancillary  representative.  Hence,  letters 
testamentary  granted  to  an  executor  in  one  State  or  country  have 
no  extra-territorial  force. ^     And  an  administrator  has  no  au- 

^  Supra,  §§  15-20.  3  Q.  B.  507  ;   Wms.  Exrs.  7th   Eng.  ed. 

^Stevens  v.   Gaylord,  11    Mass.  256;  362;    Kerr   v.    Moon,    9    Wheat.   565; 

Merrill  v.  N.  E.  Mut.  Life  Ins.  Co.,  103  Stearns  v.   Burnham,   5    Greenl.  (Me.) 

Mass.  245  ;  Clark  v.  Clement,  33  N.  H.  261  ;  Harper  v.  Butler,  2  Pet.  239;  Tre- 

567;  Childress  z'.  Bennett,  10  Ala.  751.  cothick   v.  Austin,  4   Mas.   16;  Patter- 

'Enohin  v.  Wylie,  10  H.  L.  Cas.  19,  son  v.  Pajan,  18  S.  C.  584;   Reynold  v. 

per  Lord  Cranworth  ;  2  CI.  &  Fin.  84  ;  Torrance,  2  Brev.  59  ;  Naylor?'.  Moffat t, 

^34 


CHAP.   VII.]     FOREIGN  AND  ANCILLARY  APPOINTMENTS.  §    1 65 

thority  beyond  the  limits  of  the  State  or  country  in  which  he 
was  appointed.'  In  either  case,  one  must  be  confirmed  in  his 
authority  by  the  courts  of  the  State  or  country  in  which  prop- 
erty is  situated  or  debts  are  owing  before  he  can  effectually  ad- 
minister the  property  or  collect  the  debts  there.  For  the  rights 
of  citizens  in  the  local  jurisdiction  must  be  protected,  and  one 
is  incapable  of  suing  outside  the  jurisdiction  which  appointed 
him.^ 

§  165.  Each  Sovereignty  competent  to  confer  a  Probate  au- 
thority within  its  own  Jurisdiction.  —  A  second  proposition  (which 
may  be  regarded  as  the  correlative  of  the  preceding,  and  uni- 
versally recognized  both  in  England  and  the  United  States)  is, 
that  each  independent  sovereignty  considers  itself  competent  to 
confer,  whenever  there  is  occasion,  a  probate  authority,  whether 
by  letters  testamentary  or  of  administration,  which  shall  operate 
exclusively  and  universally  within  its  own  sovereign  jurisdiction, 
there  being  property  of  the  deceased  person,  or  lawful  debts  ow- 
ing, within  reach  of  its  own  mandate  and  judicial  process.^  Such 
sovereign  jurisdiction  is  not  national,  of  necessity  ;  for  in  the 
United  States,  agreeably  to  the  limitations  of  our  federal  consti- 
tution, it  applies  as  between  the  several  States. 

29  Mo.  126;  Oilman  v.  Gilman,  54  Me.  ^  See  Wilkins  z/.  Ellett,  108  U.  S.  256, 
453;   supra,  §15.     A  dictum  of    Lord     258. 

West  bury,  in  Enohin  v.  Wylie,  supra,  ^  Banta  v.  Moore,  15  N.  J.  Eq.  97; 
to  the  effect  that  only  the  courts  of  that  Naylor  v.  Moffatt,  29  Mo.  1 26.  Thus, 
country  in  which  a  testator  dies  domi-  in  England,  one  having  an  English  ap- 
ciled  can  administer  his  personal  prop-  pointment  as  executor  is  permitted  to 
erty  is  erroneous.  6  App.  Cas.  34,  39.  sue  there  in  respect  of  foreign  assets,  so 
■  Picquet  v.  Swan,  3  Mas.  469  ;  Ma-  far  as  local  courts  can  be  of  service  to 
son  r.  Nutt,  i9La.  Ann.  41;  Cutter  za  him.  Whyte  v.  Rose,  3  Q.  B.  493. 
Davenport,  i  Pick.  81  ;  Dorsey  v.  Dor-  And  see  Reynolds  v.  Kortwright,  18 
sey,  5  J.  J.  Marsh.  280;  Williams  v.  Beav.  417;  Price  v.  Dewhurst,  4  M.  & 
Storrs,  6  Johns.  Ch.  353  ;  Vaughn  v.  Cr.  76.  And  whether  the  local  prop- 
Barret,  5  Vt.  333  ;  Willardz/.  Hammond,  erty  shall  be  remitted  abroad  is  matter 
21N.  H.  382;  McCarty  z/.  Hall,  13  Mo.  of  local  discretion.  Fretwell  z/.  Lemore, 
480;  Smith  V.  Guild,  34  Me.  443;  52  Ala.  124;  Mackey  z-.  Co.xe,  18  How. 
-Nowlerz/.  Coit,  1  Ohio,  519;  Carmichael  (U.  S.)  100;  Carmichael  v.  Ray,  5  Ired!) 
V.  Ray,  I   Rich.   116;   Sheldon  v.   Rice,  Eq.  365  ;  Hughes,  Re,  95  N.  Y.  55. 

30  Mich.  296. 


v^    167  EXECUTORS    AND    ADMINISTRATORS.  PART  II. 

v^  166.  Local  Sovereignty  recognizes  Limitatious  grounded  in 
Comity,  Good  Policy,  and  Natural  Justice.  —  But  we  may  remark, 

again,  that,  competent  as  each  sovereign  jurisdiction  regards  it- 
self, in  this  matter,  Hmitations  are  nevertheless  placed  to  the 
exercise  of  such  authority,  out  of  respect  to  comity,  good  policy, 
and  natural  justice  ;  which  limitations  we  shall  find  respected 
h}'  local  legislatures  and  the  local  courts  of  England  and  the 
United  States.  And  hence  our  third  proposition  :  that  in  prac- 
tice, the  local  sovereignty,  State  or  national,  permits  letters  to 
issue  upon  the  estates  of  deceased  non-residents,  mainly  for  the 
puqDose  of  conveniently  subjecting  such  assets  to  the  claims  of 
creditors  entitled  to  sue  in  the  local  courts,  and  for  appropriat- 
ing whatever  balance  may  remain  to  the  State  or  sovereign,  by 
way  of  distribution,  in  default  of  known  legatees  or  kindred.  If, 
therefore,  the  non-resident  proves  to  have  left  legatees  and  a 
will  whose  probate  may  be  established,  or  kindred  lawfully  en- 
titled to  distribution,  or  foreign  creditors,  the  rights  of  all  par- 
ties thus  interested  should  be  respected  ;  and,  subject  to  local 
demands  upon  the  estate,  the  local  administration  and  settle- 
ment of  the  estate  will  be  regulated  accordingly.' 

^5  167.  Administration  in  the  last  Domicile  is  the  Principal; 
other  Administrations  are  Ancillary.  -  Our  fourth  proposition  is, 
that  regarding  this  subject  from  an  international  standpoint, 
wherever  authority  to  administer  the  estate  of  one  deceased, 
testate  or  intestate,  is  granted  in  two  or  more  competent  juris- 
dicti(jns,  the  i)rincipal  administration  or  appointment  must  be 
that  where  the  deceased  had  his  last  domicile ;  and  that  admin- 
istration,  or  an  appointment  granted  elsewhere,  or  because  of 
local  property  or  assets,  is  ancillary  merely.'  And  this  chiefly 
because,  as  an  international  doctrine,  it  is  usually  conceded  that 
the  law  of  the  domicile  of  the  owner  of  personal  property  gov- 

'  See  post  as  to  distribution  in  cases  245;  Childress  v.  Bennett,  10  Ala.  751  ; 

of    ancillary   administration;    Davis  v.  Perkins  z*.  Stone,  18  Conn.  270;  Adams 

Estey,  8  Pici<.  475;  Mitchell  v.  Cox,  22  v.  Adams,  11    B.  Mon.  77;  Spraddling 

Ga.  32;  Normand  £».   Grognard,  14   X.  v.  Pippin,  15   Mo.   117;  Clark  z/.  Clem- 

J.  L.  425.  ent,    T)Tf   N.   H.   563;   Collins  v.   Bank- 

^  Fay  z/.   Haven,  3  Met.   (Mass.)  109;  head,   i    Strobh.   (S.   C.)   25;  Green  v. 

Merrill  v.  N.  E.  Life  Ins.  Co.,  103  Mass.  Rugely,  23  Tex.  539. 

236 


CHAP.   VII.]    FOREIGN  AND  ANCILLARY  APPOINTMENTS.  §    1 68 

erns  in  regard  to  the  right  of  succession,  whether  such  owner 
die  testate  or  intestate  ; '  or  to  cite  the  broader  fundamental 
maxim,  mobilia  scqiinntnr personam.^ 

§  1 68.  Principal  Letters  need  not  precede  the  Ancillary.  —  But, 
fifth,  since  each  local  sovereignty  may  act  independently  of  all 
others  in  conferring  the  local  grant,  out  of  regard  to  local  con- 
venience, and  since  what  might  otherwise  be  or  become  ancillary 
may  stand  alone,  it  is  not  necessary  that  principal  and  ancillary 
administration  should  be  committed  in  consecutive  order.  Thus, 
the  will  of  a  non-resident  testator  need  not  be  proved  in  the 
State  or  country  of  his  last  domicile,  before  the  domestic  State 
can  grant  valid  letters  upon  his  estate  situated  within  its  local 
confines  ;  ^  though,  if  it  were  shown  after  the  domestic  State 
had  granted  letters  as  upon  an  intestate  estate,  that  the  deceased 
left  a  will  which  was  duly  probated  in  his  last  and  foreign  domi- 
cile, the  domestic  domicile  should  revoke  the  grant  and  proceed 
to  appoint  as  in  case  of  testacy.^  And  if  a  resident  of  a  State 
dies  testate,  leaving  property  in  another  State  upon  which  the 
will  can  act,  it  may  be  probated  in  that  other  State,  and  the 
State  of  residence  will  give  such  probate  due  faith  and  credit. 5 
Nor  is  it  essential  that  administration  be  granted  on  an  intestate 
estate,  in  the  place  of  the  domicile  of  the  deceased,  before  an 
administrator  is  appointed  in  another  State  or  country,  where, 
agreeably  to  local  law,  administration  is  proper.^'  And  once 
more,  administration  granted  in  one  State,  on  property  there 
situated  of  a  resident  of  another  State,  is  not  impaired  or 
abridged  by  the  previous  grant  of  administration  in  such  other 
State  ;  ^  though  the  distribution  and  final  disi)osition  of  proceeds 
may  be  affected  in  consequence. 

'See  Sir  Cresswell  Cresswell  in  Cris-  "  See  Shepard  -'.  Rhodes,  60  111.  301. 

pin  V.  Doglioni,  9  Jur.  N.  S.  653  ;  s.  c.  '  Walton  v.  Hall,  66  Vt.  455. 

L.  R.   I    H.   L.  301;  Enohin  v.  Wylie,  *  Stevens  v.  Gaylord,   11    Mas.s.  256; 

10  H.  L.  Cas.  I  ;  Wilkins  v.  EUett,  108  Pinney  v.   McGiegory,   102   Mass.  192  ; 

U.  S.  256.  Rosenthal  v.  Remick,  44  111.  202., 

^ Movables  follow  the  person.  "Crosby   v.   Gilchrist,  7   Dana,    206; 

'Bowdoin  v.   Holland,  10  Gush.  17  ;  Pond  -'.  Makepeace,  2  Met.  114. 
Burnley  v.  Duke,  i  Rand.  (Va.)  io8. 

■2-n 


§    169  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

§  169.  Foreign  and  Domestic  Probate  and  Letters  Testamen- 
tary; English  Doctrine. —  The  foregoing  are  the  propositions 
mainly  to  be  considered  in  the  present  connection  ;  and  now  to 
apply  them  to  the  probate  of  wills  and  the  grant  of  letters  tes- 
tamentary. In  England,  the  last  domicile  of  the  deceased  is 
firmly  respected,  in  all  matters  of  administration  as  to  personalty. 
"  All  questions  of  testacy  or  intestacy,"  observes  Lord  Chan- 
cellor Cranworth,  in  a  modern  case,'  "belong  to  the  judge  of 
the  domicile.  It  is  the  right  and  duty  of  that  judge  to  consti- 
tute the  personal  representative  of  the  deceased.  To  the  court 
of  the  domicile  belong  the  interpretation  and  construction  of  the 
will  of  the  testator.^  To  determine  who  are  the  next  of  kin  or 
heirs  of  the  personal  estate  of  the  testator,  is  the  prerogative  of 
the  judge  of  the  domicile.  In  short,  the  court  of  domicile  is 
X\\Q.  forum  coucursHs  to  which  the  legatees,  under  the  will  of  the 
testator,  or  the  parties  entitled  to  the  distribution  of  the  estate 
of  an  intestate,  are  required  to  resort."  And  hence,  as  between 
testacy  or  intestacy,  it  is  held  that  the  courts  of  the  last  domi- 
cile must  determine  ;  and  that,  so  far  as  personalty  is  concerned, 
a  will  must  be  executed  according  to  the  law  of  the  country 
where  the  testator  was  domiciled  at  the  time  of  his  death. ^  An 
English  court  of  probate  jurisdiction  may,  doubtless,  ascertain 
what  was  in  fact  the  last  domicile  of  the  party  whose  will  has 
been  presented  for  probate  ;  but  if  probate  be  judicially  granted, 
the  conclusive  inference  is,  that  the  will  must  have  been  exe- 
cuted according  to  the  law  of  testator's  last  domicile.^  We  here 
refer  to  wills  of  personalty,  in  strictness  ;  for,  with  respect  to 
real  property,  the  descent,  devise,  or  conveyance  thereof,  and 

'  Enohin  v.  Wylie,    10  H.   L.  Cas.  i,  States  v.  McRae,  L.  R.  3  Ch.  86.    And 

cited  by  Sir  Cresswell  Cresswell  in  Cris-  see  in  general  Story  Confl.  Laws,  §  638 ; 

pin  V.  Doglioni,  L.  R.  i  H.  L.  301.  supra,  §§  15,  17. 

^This  statement  is  subject  to  qualifi-  ^  Whicker?'.  Hume,  7  II.  L.  Cas.  124; 

cation.       Domestic    courts    incline    to  Douglas  v.  Cooper,  3  Myl.  &  K.  378. 

weigh  the  foreign  proofs  and  e.xplana-  *  i     Redf.    Wills.    398 ;    Whicker   v. 

tions  procurable,  but  with  such   extra-  Hume,  7  H.   L.   Cas.   124.     But  where 

neous  assistance  to  interpret  the  instru-  the  transcript  of  foreign  probate  fails  to 

ment  upon  domestic  principles  of  con-  show  an  adjudication  by  the  court,  but 

siniction.     See  Wms.   Exrs.   370,   371,  that  the  clerk  issued  the  letters  on  his 

and  Perkins's  ti.  ;  Di  Sora  v.  Phillipps,  own  authority,  this  is  a  ministerial  act 

10  H.   L.  Cas.  633,  639,  640;  United  on  the  face,  and  the  domestic  court  may 

238 


CHAP.   VII.]    FOREIGN  AM)   ANCILLARY  APPOINTMENTS.  §    1 69 

Other  general  incidents  affecting  its  title  and  transfer,  the  law 
of  local  situation  appears  to  have  constantly  prevailed  in  English 
law.' 

Accordingly,  the  will,  so  far  at  least  as  personalty  is  concerned, 
must  conform  to  the  place  of  the  testator's  last  domicile ;  and 
the  law  of  this  last  domicile  decides,  as  to  one  domiciled  abroad, 
what  was  his  last  will,  how  and  by  whom  such  will  is  to  be  exe- 
cuted, and  in  general,  all  questions  of  one's  testacy,  testamen- 
tary capacity,  and  disposing  power.*  Modern  statutes  and  modern 
probate  practice  provide  for  the  authentication  of  foreign  wills 
where  local  and  domestic  convenience  requires  it.  An  official 
copy  of  the  probate,  or  act  of  recognition  of  the  will  by  the  court 
of  such  foreign  domicile,  should  be  produced  before  the  local 
probate  tribunal,  with  a  translation  or  a  re-translation  of  the 
will,  as  may  be  deemed  suitable.^ 

Under  a  will  of  this  character  thus  exemplified,  the  foreign 
executor  is  respected  in  the  English  courts.  If  the  executor, 
constituted  under  a  foreign  will,  finds  occasion  to  institute  a  suit 
in  English  jurisdiction  for  the  jDurpose  of  recovering  local  assets, 
he  must  prove  his  will  before  the  English  probate  tribunal,  and 
procure  local  authority  or  constitute  some  personal  ancillary  rep- 
resentative, as  by  virtue  of  his  foreign  appointment.  And  so, 
too,  where  it  is  intended  that  the  foreign  will  shall  operate  upon 
local  property. ■♦  Without  an  English  grant  he  cannot  sue  or 
exercise  general  authority  as  to  English  assets  of  the  estate. 
Rut  the  probate  tribunals  of  England  will,  in  such  cases,  follow 
the  grant  of  the  court  of  that  foreign  country  where  the  de- 
ceased died  domiciled  ;  and  the  last  will  sanctioning  his  appoint- 
ment having  been  authenticated  abroad  and  proved  by  exempli- 
fied copy  in  the  proper  English  probate  court,  the  latter  court 

inquire  collaterally  into  the  sufficiency  regardless  of  the  character  of  the  prop- 

of   the    grant.     Illinois    Central    R.    7'.  erty  to  be  transmitted.     Supra,  %?>. 

Crazin,  71  111.  177.  ^i  Hagg.  Ec.  373,  498  ;  Price  z'.  Dew- 

'  I  Vern.  85 ;  Brodie  v.  Barry,   2   V.  hurst,  4  M.  &  Cr.  76,  82 ;  Wms.  Exrs. 

&  B.  131  ;  Freke  v.  Lord  Carbery,  L.  R.  366. 

16   Eq.    461.     See  act   24  &   25   Vict.  ^ pg  Vigny, /«  r^,  1 3  L.  T.  N.  S.  246 ; 

c.    114;    the    new    English    wills    act.  L'Fit  z/.  L'Batt,  i  P.  Wms.  526. 

Modern  jurisprudence  favors  the  execu-  *  Wms.  Exrs.  362. 
tion  of  wills  with  the  same  formalities, 


§    I  70  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

will  clothe  him  with  the  needful  ancillary  authority  to  enable 
him  to  execute  his  local  functions.'  As  to  the  probate  tribunal 
and  the  general  mode  of  administration,  and  to  a  certain  extent 
in  the  construction  of  the  will,  the  law  of  the  place  where  the 
personal  estate  is  situated,  and  where  ancillary  letters  are  sought, 
must  prevail.^ 

§  I  70.  The  same  Subject ;  American  Doctrine. —  In  the  United 
States  the  same  general  rules  prevail  as  to  probate  and  executors, 
subject,  however,  to  much  statute  regulation.  Probate  and  admin- 
istration are  local,  and  the  foreign  executor  has  no  authority  as 
such  which  local  tribunals  are  bound  to  obey.'  It  has  been  re- 
garded as  not  indispensable  to  the  proof  of  a  foreign  will,  in  the 
courts  of  another  place  than  that  of  the  testator's  domicile,  that 
the  foreign  probate  should  be  recorded  in  the  domestic  probate 
court  ;  though  it  must  be  shown  in  evidence  that  the  will  has 
been  duly  admitted  to  probate  in  the  proper  tribunal  of  the  tes- 
tator's domicile.'*  But  it  is  now  the  American  practice,  fortified 
by  local  legislation,  for  the  executor  or  other  person  interested 

"  Wms.  Exrs.  370;  Enohin  z'.  Wylie,  Gatti,  Goods  of,  27  W.  R.  323.     See  as 

10  H.  L.  Gas.  14.     The  duly  appointed  to    Scotch  assets,    Sterling-Maxwell  v. 

attorney  of  the  person  in  interest  may  Gartwright,  L.  R.  9  Gh.   D.  173;  L.  R. 

be  selected  to  administer  under  the  will  1 1  Gh.  D.  522  ;  Wms.  Exrs.  363.     Eng- 

upon  the    usual   piinciples.     Dost    Ali  lish  courts  have  jurisdiction  to  adn\inis- 

Khan,  Goods  of,  L.  R.  6  P.  D.  6.     The  ter  trusts  of  a  will   as  to  the  whole  es- 

Enghsh    statute  24  &  25   Vict.  c.   114,  t ate,  both  Scotch  and  English,  though 

provides   as  to  wills  made   by   British  the  testator  be  domiciled  in  Scotland, 

subjects  dying  after  August  6, 1861,  that  Ewing  v.  Ewing,  9  App.  Gas.  34. 

every  such  will  made  out  of  the  king-  ^ Price  v.    Dewhurst,  4  M.  &  Cr.  76; 

dom   shall,  as  regards  personal  estate,  Reynolds  v.  Kortwright,  18  Beav.  417; 

be  held  to  be  well  executed,  if  made  ac-  j«/;'rt,  §§   15-17.     As  to  the  will   of  a 

cording  to  the  law  of  the  place  where  it  foreigner  made  in  England,  according 

was  made,  or  where  a  testator  w"as  then  to  English  law,  see  Lacroix,  Goods  of, 

domiciled,  or  where  he  had  his  domicile  L.  R.  2   P.  D.  97  ;  Gaily,  Goods  of,  24 

of  origin.     See  Wms.  Exrs.  374.     This  W.  R.  1018. 

changes  much  of  the  law  previously  in  'See  supra,  §  164.     A   court   of  one 

force   in  that  country  on   the  subject.  State  need  not  recognize  the  removal  of 

Apart  from  such  legislation  (which  does  an  e.xecutor  there  appointed,  which  the 

not  apply  to  aliens)  the  will  of  a  for-  court  of  another  State  orders.     Tillman 

eigner   executed    abroad    with    English  v.  Walkup,  7  S.  G.  60. 

fomialities  is  not  on  that   consideration  ^Townsend  z'.  Moore,  8   Jones  Eaw, 

entitled  to  English  probate.     Von    Ru-  187;  Jemison  z/.  Smith,  37  Ala.  185. 
seek,   Goods  of,  L.   R.  6   P.   D.  211  ; 

240 


CHAP.   VII.]    FOREIGN  AND  ANCILLAKV  APPOl.XTMENTS.  §    I?! 

in  a  will,  which  has  been  proved  and  allowed  in  any  other  of  the 
United  States  or  in  a  foreign  country,  to  produce  a  copy  of  the 
will  and  of  the  probate  thereof,  duly  authenticated,  to  the  pro- 
bate court  in  any  county  of  the  domestic  State  in  which  there 
is  any  estate  real  or  personal  upon  which  the  will  may  operate, 
or  assets  ;  and  upon  his  petition,  after  due  citation  and  a  hear- 
ing, the  court  orders  the  copy  to  be  filed  and  recorded.  This 
gives  the  will  the  same  effect  as  if  it  had  been  originally  proved 
and  allowed  in  such  domestic  State.  After  the  will  is  so  al- 
lowed and  ordered  to  be  recorded,  the  court  grants  letters  tes- 
tamentary or  of  administration  with  the  will  annexed,  with  a 
(jualification  as  circumstances  may  require,  and  proceeds  to  the 
settlement  of  the  estate  which  may  be  found  in  such  State.' 

§171.  Whether  Will,  to  be  operative,  must  conform  to  the  Lavv 
of  Last  Domicile.  —  Aside  from  Statute,  a  will  to  be  operative 
must,  according  to  the  better  authority,  conform  to  the  law  of 
the  place  of  the  testator's  last  domicile.^  But,  by  statute,  it  is 
now  quite  frequently  provided  that  a  will  executed  out  of  the 
local  jurisdiction,  in  conformity  with  the  law  of  the  place  where 
made,  shall  effectually  prevail  within  such  local  jurisdiction. 
The  formal  probate  of  such  a  will  is  the  same  as  that  usually 
pursued  ;  the  testator's  soundness  of  mind,  capacity,  and  dispos- 

'  See  Beers  v.  Shannon,  73  N.  Y.  292  ;  mine,  see  Loring  v.  Oakey,  98  Mass. 
Mass.  Gen.  Stats,  c.  92 ;  Parker  v.  267.  As  to  a  foreign  transcript  indi- 
Parker,  11  Cush.  519;  Leland  z*.  Man-  eating  no  adjudication,  see  Illinois  Cen- 
ning,  4  Hun  (N.  Y.)  7;  Arnold  v.  Ar-  tral  R.  v.  Crazin,  71  111.  177. 
nold,  62  Ga.  627  ;  Butler's  Succession,  An  executor  appointed  in  the  State 
30  La.  Ann.  887  ;  66  Vt.  455.  The  copy  where  the  testator  was  domiciled  may 
of  the  will  and  of  the  decree  of  the  accept  the  office  in  such  State,  and  re- 
court  of  original  jurisdiction  are  con-  nounce  it  in  the  State  of  local  assets, 
elusive,  in  the  absence  of  fraud,  of  all\  Hooper  v.  Moore,  5  Jones  L.  13c.  ^ 
the  facts  necessary  to  the  establishment  The  executor  who  applies  for  ancil- 
of  the  will,  the  regularity  of  the  pro-  lary  letters  testamentary  is  not  reheved 
ceedings,  etc.  Crippen  v.  De.xter,  13  from  giving  bond  with  sureties  as  the 
Gray,  330.  The  object  is  to  furnish  ancillary  court  may  require,  notwith- 
genuine  documentary  proof  of  the  orig-  standing  the  testator's  request  nor  the  ex- 
inal  probate.  Helme  v.  Sanders,  3  emption  allowed  by  the  domiciliary  court 
Hawks,  566.  That  the  court  of  local  of  probate.  Keith  z/.  Proctor,  114  Ala. 
assets  is  not  to  meddle  with  the  domi-  676.  And  see  §19. 
ciliary  probate,  or  raise  issues  which  -  Story  Confl.  Laws,  §  468 ;  i  Binn. 
properly  belong  to  that  forum  to  deter-  336;  Stanley  v.  Bernes,  3  Hagg.  373  ; 
16                                              241 


§    1/2  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

ing  intent  should  appear ;  and  though  the  particular  facts  to  be 
proved  must  depend  upon  requirements  of  the  local  law  in  which 
the  will  was  executed,  the  same  certainty  of  proof  is  essential 
as  if  the  will  had  been  made  in  the  place  of  local  jurisdiction.' 
There  has  been  much  conflict,  and  among  continental  jurists  es- 
pecially, as  to  whether  a  will  executed  in  accordance  with  the 
law,  both  of  the  place  where  made  and  of  the  testator's  domicile 
at  the  time  of  its  execution,  shall  be  inoperative  merely  for  not 
conforming  with  the  law  of  the  place  of  the  testator's  domicile 
at  the  time  of  his  death  ;  ^  but  even  here  the  general  rule  ob- 
tains, requiring  conformity  to  the  law  of  last  domicile  under  all 
circumstances  ;  w^hich  rule,  however,  has  been  reversed  by  leg- 
islation as  to  personal  property,  if  not  as  to  property  whether  real 
or  personal.^  A  will  need  not  have  been  executed  according  to 
the  law  of  the  State  in  which  ancillary  letters  are  desired,  except 
that  a  will  of  real  property  must  conform  to  the  law  of  local 
situation.'' 

§172.  Foreign  and  Domestic  Administration.  —  Next,  as  to 
administration  and  the  estates  of  intestates.  Administration 
must  be  taken  out  in  the  State  or  country  where  there  are  as- 
sets to  be  administered,  as  well  as  in  the  country  of  the  intes- 
tate's last  domicile  ;  for,  as  we  have  seen,  a  local  appointment 
can  alone  confer  local  authorit}'.^  Administration,  whether  prin- 
cipal or  ancillary,  aims  in  theory  to  distribute  according  to  the 
law  of  the  country  in  which  the  deceased  had  his  last  domicile  ; 
and  the  right  of  ap])()intmcnt  might  well  follow  the  interest  ac- 
cordingly ;  *"  nevertheless,  statutes  in  force  at  the  place  where 
jurisdiction  is  taken,  practically  control  the  subject. ^     Under, 

Moore  v.  Darrell,  4  Hagg.  346.     But  cf.  -'^  Supra,  §  22. 

Roberts's  Will,  8  Paige,  519;  Curling  z/.  ^  Wms.  Exrs.  430  ;    lohiistor,  Goods 

Thornton,  2  Add.  6,  10.  of,  4  Hagg.   182.     A  party  who  applies 

'  See  Bayley  v.  Bailey,  5   Cush.  245.  as  agent   of  a  non-resident  entitled  to 

*  Moultrie  v.  Hunt,  23  N.  V.  394  ;  administer  must  exhibit  proper  author- 
In\-in's  Appeal,  33  Conn.  128;  Story  ity.  i  Hagg.  93.  Domiciliary  admin- 
Confl.  Laws,  §  473.  istrator  may  appeal  from    local  grant. 

^English  act   24  &  25   Vict.   c.    114;  17  N.  E.  310. 

Bayley  v.   Bailey,  5  Cush.   245  ;   supra,  '  This  subject  receives  consideration 

§  169.  in  c.  3,  supra.     It   would  appear  that  a 

*  Langbein  Re,  i   Demaiest,  448.  foreign  consul  has  no  right,  on  ])rinciple 

242 


CHAP.   VII.]    FOREIGN  AND  ANCILLARY  APPOINTMENTS.  §    1 73 

or  independently  of  statute  provisions,  the  rule  generally  obtains 
in  England  and  our  several  States,  that  whenever  an  intestate 
foreigner  or  non-resident  dies  leaving  estate  to  be  administered 
in  the  local  jurisdiction,  administration  of  such  estate  may 
therein  be  granted ;  such  administration,  in  case  of  a  grant  in 
the  jurisdiction  where  the  intestate  had  his  last  domicile,  be- 
coming ancillary  to  the  principal  grant.  The  law  of  the  local 
situation  of  the  personalty  governs  the  grant  of  administration.' 
And  the  local  statute  may  apply  in  general  terms  to  those  who 
die  without  the  State,  leaving  property  within  the  same  to  be 
administered  upon,  whether  the  deceased  were  alien  or  citizen.^ 

§  173-  Foreign  Appointment  of  Executors  or  Administrators 
Unavailable  in  Domestic  Jurisdiction  ;  Local  Letters  required  ;  Ex- 
ceptions.— The  executor  or  administrator  appointed  in  one  State 
or  country  has,  therefore,  no  right  of  control,  as  such,  over 
property  in  another  State  or  country.  As  to  external  assets,  he 
cannot  interfere.  He  has  no  power  to  collect  debts  or  incor- 
poreal personalty  in  such  other  State  or  country  ;  nor,  perhaps, 
to  discharge.^  He  cannot  control  lands  so  situated.'*  Nor  can 
he  be  sued  or  defend  a  suit  as  executor  or  administrator  in  one 
State   or   country   by  reason   of  an   appointment   conferred   in 

of  mere  comity,  to  take  possession  of  a  190;   Willing  v.   Peiot,   5   Rawle,  264; 

deceased  foreigner's  estate  in  a  particu-  Woodruff  v.  Schultz,  49  Iowa,  430. 

lar  local  jurisdiction.     Local    statutes,  ^  Piquet,  Appellant,  5  Pick.  65. 

which  vest  the  right  in  a  public  adminis-  ^  Supra,   §    164;    U.    S.    Digest,    ist 

trator,  or  other  local  functionary,   are  series,  Executors    and    Administrators, 

decisive  of  the  local  controversy.  See  As-  4432-4455;    Sanders  v.  Jones,  8  Ired."" 

pinwall  7'.  Queen's  Proctor,  2  Curt.  241.  Eq.  246;   People  z-.   Peck,   4    111.    118; 

The  Enghsh  statute  24  &  25   Vict.  c.  Pond  v.  Makepeace,  2   Met.  114;  Bea- 

121,  provides  that  the  consul  of  a  for-  man  v.      Elliot,    10  Cush.  172;  Chap- 

eign  State  may  administer  in  English  man  v.  Fish,  6   Hill,  555 ;  McClure  v. 

jurisdiction,  where  reciprocal  rights  are  Bates,  12  Iowa,  77  ;  Sabin  v.  Gilman,  i 

secured  by  convention  in  such  foreign  N.  H.   193;  Cockleton  v.  Davidson,   1 

State  to  British  consuls.     Wms.  E.xrs.  Brev.  15;  Doe  z/.  McFarland,  9  Cranch, 

430.     But  the  nature  of  probate  juris-  151;   Kerr    v.    Moon,    9    Wheat.   556; 

diction  in  our  several   States  forbids,  Mansfield    z>.     Turpin,     32    Ga.     260; 

apparently,  any  treaty  stipulation  of  this  Union  Mutual  life  Ins.  Co.  z'.  Lewis,  97 

kind  on  the  part  of  the  United  States  U.   S.  Supr.  682  ;  Ferguson  v.  Morris, 

government.  67  Ala.  389. 

'  Isham  7'.  Gibbons,  i  Bradf.  (N.  Y.)  "  Apperson  v.  Bolton,  29  Ark.  418; 
60.    Plummer  v.    Brandon,   5  Ired.   Eq. 

^3 


§    I  73  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

another.'  The  well-settled  rule  is  that  administration  operates 
of  right  only  in  the  State  or  country  where  it  was  granted,  and 
there  may  operate  exclusively  of  all  foreign  appointment ;  and 
that,  before  one  can  be  recognized  in  a  jurisdiction  as  personal 
representative  of  the  deceased,  he  must  be  clothed  with  the  cor- 
respondent probate  authority  which  the  sovereignty  of  that  juris- 
diction is  competent  to  confer,  or  at  least  to  conform  to  require- 
ments which  the  local  law  sees  fit  to  impose.'' 

To  this  rule,  however,  are  exceptions,  grounded  in  comity  or 
favor.  Some  American  States  permit  a  foreign  executor  or  ad- 
ministrator qualified  abroad  to  sue  for  local  assets  belonging  to 
the  estate  of  the  deceased,  without  qualifying  under  a  local  pro- 
bate appointment  ;  which  permission,  however,  being  in  deroga- 
tion of  sovereign  right,  the  statutes  which  prescribe  the  terms 
of  such  suits,  as  by  record,  or  otherwise,  must  be  strictly  fol- 
lowed. If  qualified  locally  according  to  the  laws  of  that  particular 
State,  by  probate  appointment  or  otherwise,  he  may  sue  and  col- 
lect, of  course.^  So  have  statutes  permitted  the  non-resident 
executor  or  administrator  to  defend  local  suits  on  similar  terms ;  * 
or  made  him  subject  to  suits  by  attachment  5  or  otherwise,  at 
least  when  the  cause  of  action  arose  in  the  local  forum.''     Foreign 

Sheldon  v.  Rice,  30  Mich.  296 ;  16  Neb.  ."^tate  administration  granted  upon  bona 

418.  iiotabilia  may  enable  the  administrator 

'  Allsup   7'.    Allsup,    10    Yerg.    2S3 ;  to    recover   assets  in   the    District    of 

Curie  7'.  Moore,   i    Dana,  445 ;   Winter  Columbia.      Blydenburgh  v.   Lowry,  4 

V.  Winter,   i    Miss.   (Walk.)   21 1;  Ver-  Cranch,  C.  C.  368.     But  the  appointee 

milya  v.  Beatty,  6  Barb.  429  ;  Norton  v.  of  the  District  has  the  usual  immunities. 

Palmer,   7  Cush.  523;   Kerr  v.    Moon,  Vaughan  ;■.  Northup,   15  Pet.  i.     The 

9  Wheat.   565  ;    Hedenberg  v.    Heden-  foreign   appointee   on  the  estate   of  a 

berg,  46  Conn.  30 ;   Patterson  7-.  Pagan,  domiciled   citizen    is  not    likely  to  be 

8  S.  C.   584;  Sloan  v.   Sloan,  21    Fla.  recognized   in  the  domiciliary  jurisdic- 

589.  A  court  of  chancery  cannot  decree  tion  as  having  the  right  to  sue  or  col- 

against  a  foreign  administrator  as  such.  lect.     Southwestern  R.  v.  Paulk,  z.\  Ga. 

Sparks  v.  White,  7  Humph.  86.  356. 

*  Turner  v.  Linam,  56  Ga.  253  ;  Bells         ^  Ilobart    v.    Connecticut     Turnpike 

V.  Nichols,  38  Ala.  678  ;  Kansas  Pacific  Co.,  15  Conn.  145  ;  Crawford  7'.  Graves, 

R.   .'.  Cutler,   16  Kan.  568;   Moore   v.  15  La.  Ann.  243;  Naylor  v.  Moffatt,  29 

Fields,  42  Penn.  St.  467  ;  Price  v.  Mor-  Mo.  126  ;  Banta  v.  Moore,  15  N.  J.  Eq. 

ris,  5  McLean,  4 ;  Naylor  7'.  Moody,  2  97 ;  70  Cal.  403. 
Blackf.  247  ;  Rockham  v.  Wittkowski~       ■*  Moss  v.  Rowland.  3  Bush,  505. 
64  N.  C.  464.     As  to  the  running  of         *  Cady  z/.  Bard.  21  Kan.  667. 
limitations    against    such     foreign    ap-         ''Hopper  v.  Hopper,   125  N.  Y.  400. 
pointee,  see  Bells  v.  Nichols,  supra.    A 

244 


CHAP.   VII.]    FOREIGN   AXn  ANXILLARV  APPOINTMENT.S.  §    I  73 

representatives,  by  virtue  of  the  property  belonging  cither  to 
the  estate,  or  to  themselves,  or  their  own  place  of  local  residence, 
are  sometimes  made  amenable  in  equity  courts  of  the  local  juris- 
diction, as  we  shall  see  hereafter,  for  fraudulent  conduct  and 
delinquency  in  their  trust,  or  intermeddling ;  a  principle  which 
runs  deep  in  chancery  practice.'  And  local  statutes  enable  for- 
eign executors  or  administrators  to  sell  or  deal  with  real  estate 
in  the  local  situs  for  due  administration  purposes,  or  to  transfer 
local  stock,  or  to  perform  various  other  specified  acts  in  the  local 
jurisdiction.' 

The  executor  or  administrator  appointed  in  another  State  has 
been  permitted  to  maintain  an  action  on  a  judgment  there  re- 
covered, on  the  ground  that  such  suit  need  not  be  brought  in 
the  official  character.^  Also  by  indorsement  or  without  it,  as 
the  case  may  require,  to  enable  his  assignee  or  transferee  to  sue 
on  a  negotiable  instrument  or  other  written  evidence  of  debt  in 
another  State,  although  he  might  not  have  sued  directly  upon 
it  as  a  representative  of  the  deceased  ;  ■♦  and,  indeed,  one  might, 
in  his  own  name,  sue  on  a  negotiable  instrument  payable  to 
bearer,  its  production  in  the  local  court  affording  prima  facie 
evidence  of  the  right  to  sue  and  collect. 5  The  right  of  a  for- 
eign executor  or  administrator  to  assign  or  indorse  in  such  ca- 
pacity, so  as  to  confer  a  right  to  sue  in  the  foreign  local  court, 


'See  Montalvan  v.  Clover,  32  Barb.  %>.  O'Neal,  3  Siieed.  55;  Slauter  v. 
190;  Evans  v.  Tatem,  9  S.  &  R.  252;  Chenowith,  7  Ind.  211  ;  Trecothick  v. 
Field  V.  Gibson,  56  How.  (N.  Y.)  Pr.  Austin,  4  Mason,  16;  Biddle  j/.  Wilkins, 
232;  Colbert  z*.  Daniel,  32  Ala.  314;  i  Pet.  686;  70  Cal.  403.  But  the  fact 
Patton  z/.  Overton,  8  Humph.  192;  Tun-  that  a  foreign  administrator  had  recov- 
stall  V.  Pollard,  11  Leigh,  i  ;  Powell  v.  ered  judgment  as  such  will  not  entitle 
Stratton,  11  Gratt.  792.  The  rule  of  him  to  sue  in  Georgia,  save  upon  corn- 
charging  a  foreign  e.xecutor  who  has  pliance  with  the  local  requirement  of 
not  taken  out  local  letters  is  not  uni-  filing  a  copy  of  his  letters.  Buck  v. 
formly  asserted,  and  gives  rise  to  van-  Johnson,  67  Ga.  82. 
ous  opinions.  See  Story  Confl.  Laws,  ■•  Peterson  v.  Chemical  Bank,  32 
§  514  b,  and  notes.  N.  V.  21  ;  Leake  v.  Gilchri.st,  2  Dev.  L. 

^  See  WilUams  v.  Penn.  R.,  9  Phila.  73.  Bond  and  mortgage  may  be  thus 
(Pa.)  29S ;  local  codes;  rights  of  execu-  assigned  so  as  to  confer  a  right  to  fore- 
tors,  etc.,  as  to  real  ei^tate, /^^j/*  ,•  Luce  close.  Smith  v.  Tiffany,  16  Hun,  562. 
V.  Manchester  R.,  63  N.  H.  588.  Cf.  20  S.  C.  167. 

^  Talmage  7'.   Chapel,  16   Mass.   71;         ^  g^rrett    v.   Barrett,  8   Greenl.   353; 

Barton  ?■.  Higgin.s,  41  Md.  539  ;  Young  Robinson  p.  Crandall,  9  Wend.  425. 

245 


§  174 


EXECUTORS    AND    ADMINISTRATORS, 


[part  II. 


has,  however,  been  questioned.'  Upon  a  contract  made  with 
himself,  as  executor  or  administrator,  a  foreign  executor  or  ad- 
ministrator may  sue^  or  be  sued.^ 

§  I  74.  Principal  and  Ancillary  Letters  ;  Comity  as  to  transmit- 
ting Assets  for  Distribution,  after  Local  Debts  are  satisfied. —  The 
estate  of  a  deceased  person  is,  substantially,  one  estate,  and  in 
this  sense  the  residuary  legatees  or  distributees  are  interested 
in  it  as  a  whole,  even  though  it  be  spread  through  various  juris- 
dictions ;  while,  as  a  rule,  each  administration  must  be  settled, 
so  to  speak,  in  the  jurisdiction  where  it  was  granted.  When 
any  surplus  remains  in  the  hands  of  a  foreign  or  ancillary  ap- 
pointee, after  paying  all  debts  in  that  jurisdiction,  the  foreign 
court  will,  in  a  spirit  of  comity  and  as  a  matter  of  judicial  dis- 
cretion, order  it  to  be  paid  over  to  the  domiciliary  executor  or 
administrator,  if  there  be  one,  instead  of  making  distribution  ;* 
in  which  case,  the  fund  is  applicable  to  debts,  legacies,  and  ex- 
penses at  the  principal  jurisdiction,  as  well  as  to  distribution. s 


'  Stearns  v.  Buinham,  5  Greenl.  261  ; 
Thompson  f.  Wilson,  2  N.  11.  291. 

-  Lawrence  r.  Lawrence,  3  Barb.  Ch. 
71;  Barrett  v.  Barrett,  8  CJreenl.  346; 
Du  Val  V.  Marshall,  30  Ark.  230 ;  Trot- 
ter z/.  White,  ID  Sm.  &  M.  607;  Story 
Confl.  Laws,  §§  513,  516,  517. 

"  The  administrator,  by  virtue  of  his 
appointment  and  authority  as  such,  ol> 
tains  the  title  in  promissory  notes  or 
other  written  evidences  of  debt,  held  by 
the  intestate  at  the  time  of  his  death, 
and  coming  to  the  possession  of  the  ad- 
ministrator, and  may  sell,  transfer  and 
endorse  the  same;  and  the  purchasers 
or  endorsees  may  maintain  actions  in 
their  own  names  against  the  debtors  in 
another  State,  if  the  debts  are  negoti- 
able promissory  note.s,  or  if  the  law  of 
the  State  in  which  the  action  is  brought 
permits  the  assignee  of  a  chose  in  ac- 
tion to  sue  in  his  own  name."  Mr.  Jus- 
tice Gray,  in  Wilkins  v.  Ellett,  108  U.  S. 
256,  258.     Ste  §  iy6,/>osf. 

The   principal    administrator,   unless 


forbidden  by  statute,  may  sell  and  assign 
stock  of  a  local  corporation  where  no 
ancillary  administration  exists.  Luce 
7/.  Manchester  R.,  63  N.  H.  588.  A 
State  which  charters  a  corporation  is  its 
domicile  in  reference  to  the  debts  which 
it  owes,  for  there  only  can  it  be  sued  or 
found  for  the  service  of  process.  This 
is  now  changed  considerably  by  legisla- 
tion, so  that  a  corporation  of  one  State 
doing  business  in  another  is  made  su- 
able. See  N.  E.  Mutual  Life  Ins.  Co., 
Ill  U.  S.  138;  96  U.  S.  369;  Railroad 
Co.  z'.  Harris,  12  Wall.  65. 

Injunction  refused  to  prevent  a  foreign 
executor  from  removing  assets  from  the 
jurisdiction,  where  no  especial  grounds 
demanding  relief  were  shown.  51  N.  Y. 
Super.  441. 

^  Johnson  ?'.  Wallis,  112  N.  Y.  230, 
distinguishing  such  liabilities  as  were 
purely  based  upon  transactions  of  the 
decedent. 

■•  Wright  V.  Phillips,  56  Ala.  69. 

5  Such   transmission   is   natural   and 


246 


CHAP.   VII.]    FOREIGN  AN.D  AXCILLAKV  APPOIXTMENTS.  §    1/4 

The  rule  to  thus  pay  over  is  not,  however,  absokite  ;  on  the  con- 
trary, the  transfer  will  not  be  made  if  deemed,  under  the  cir- 
cumstances, improper  ; '  and  legislative  policy  is  to  secure  the 
rights  of  its  creditors  and  citizens  at  all  hazards.  The  legal  per- 
sonal representative  constituted  by  the  forum  of  the  domicile 
of  a  deceased  intestate  is  usually  the  person  entitled  to  receive 
and  give  receipts  for  the  net  residue  of  his  personal  estate  ob- 
tained in  any  country.^  And  to  such  legal  representative,  and 
not  to  an  ancillary  one,  claimants  who  are  not  creditors  of  the 
estate,  and  especially  legatees,  residuaries  and  distributees, 
should  report  for  the  allowance  of  their  respective  rights.^ 
Distribution  of  the  estate,  and  the  rights  of  legatees  and  of  the 
surv'iving  husband  or  widow,  affecting  the  surplus,  should  be 
regulated  by  the  law  of  the  domicile  of  the  testator  or  intestate, 
at  the  time  of  his  decease.-* 

But  as  to  the  payment  of  local  debts  out  of  the  local  assets, 
or  of  local  funeral  or  burial  expenses,  properly  chargeable  against 
the  estate,  the  law  of  the  place  under  which  an  ancillary  ad- 
ministration is  taken,  must  govern  ;  5  and  the  satisfaction  of 
local  creditors,  in  full  or  pro  rata,  according  as  the  general 

proper  where  it  appears  that  no  debts  diction  was  a  foreign  one.  Aspden  v. 
were  owing  in  the  ancillary  jurisdiction.  Nixon,  4  How.  467.  And  if  doubts 
Wright  J'.  Gilbert,  51  Md.  146.  Where  arise  as  to  the  genuineness  of  foreign 
a  foreign  distributee  is  an  infant,  this  is  claims  to  the  residue,  as  against  domes- 
preferable  to  ordering  payment  to  Iris  tic  distributees  or  the  State  itself,  this 
"  foreign  guardian."  Twimble  &.  Dzied-  might  furnish  reason  for  holding  back 
zyiki,  57  How.  (N.  Y.)  Pr.  208.  See  the  fund  for  inquiry, 
also  Wms.  Exrs.  1664,  and  Perlcins's  ^Eames  v.  Hacon,  50  L.  J.  Ch.  740. 
note;  Story  Confl.  Laws,  §513;  Low  ^ Brown  v.  Brown,  i  Barb.  Ch.  189; 
V.  Bartlett,  8  Allen,  259;  Mackey  v.  Richards  z/.  Dutch,  8  Mass.  506 ;  Camp- 
Coxe,  18  How.  (U.  S.)  100;  Hayes  v.  bell  v.  Sheldon,  13  Pick.  23;  Russell 
Pratt,  147  U.  S.  557.  V.  Hooker,  67  Conn.  24. 

'  Williams  v.   Williams,   5   Md.  467 ;  "■  Churchill  v.   Prescott,  3  Bradf.  (N. 

Lawrences.  Kitteredge,  21  Conn.  577;  Y.)  233;  Ordronaux  z/.  Helie,  3  Sandf. 

Gilchrist  J*.  Cannon,  i  Coldw.  581  ;   For-  Ch.  512  ;  Goodall  v.  Marshall,  11  N.  H. 

ter  V.  Heydock,  6  Vt.  374 ;  Fretwell  v.  88 ;    Jones  v.  Gerock,  6  Jones  (N.  C.)) 

Lemore,  52  Ala.  124;  Harvey  v.  Rich-  Eq.   190;    Tucker  v.  Candy,   10   Rich, 

ards,   I    Mason,  381  ;    Hughes,  Re,  95  Eq.  12. 

N.  Y.  55.     As  between  different  States,  '  lb.     And  see  Wms.  Exrs.  1664  and 

assets  will  be  more  readily  transmitted  Perkins's  note.     As  to  such  funeral  or 

inavoidanceof  claimants  of  the  re.sidue,  burial  expenses,  see  165  Ma.ss.  240. 
semble,  than  where  the  domiciliary  juris- 

247 


§    174  EXECUTORS    AND    ADMINISTRATORS.  [PART  II.  • 

solvency  or  insolvency  of  the  estate  may  require,  or  the  local 
statute  prescribe,  is  incumbent  upon  the  ancillary  administra- 
tor, before  he  remits  the  balance  to  the  foreign  executor  or  ad- 
ministrator.' Domestic  distributees  may  also  have  an  interest 
in  the  questions  of  transmitting  the  assets.^  For  the  spirit  of 
comity  does  not  require  that  citizens  shall  be  put  to  the  incon- 
venience and  expense  of  proving  and  collecting  their  claims 
abroad  when  there  are  assets  at  hand,  or  that  local  rules  for 
distributing  an  insolvent's  estate  shall  yield  to  foreign  ;  nor,  on 
the  other  hand,  can  it  approve  of  the  absorption  of  local  assets 
by  local  creditors,  to  the  prejudice  of  creditors  at  the  domicile  ; 
but  what  it  asks  is,  that  the  local  estate  shall,  as  far  as  practi- 
cable, be  so  disposed  of  that  all  creditors  of  the  deceased,  in 
whatever  jurisdiction,  shall  receive  their  proportional  share,  if 
the  estate  be  insufficient  to  pay  them  in  full.^  Where  there  are 
distributees  or  legatees  locally  resident,  and  no  domiciliary  cred- 
itors, the  ancillary  jurisdiction  is  indisposed  to  transmit  local 
assets  to  the  domiciliary  jurisdiction,  regardless  of  such  local 
claimants.'' 

Not  only  does  the  place  where  letters  are  locally  granted  gov- 
ern as  to  the  local  grant  of  letters  and  the  rules  for  settlement 
of  local  debts,  but  the  accountability  of  an  administrator  for  all 
assets  received  in  one  State  or  country,  and  all  questions  as  to 
the  faithful  or  unfaithful  discharge  of  his  duties  and  his  liability 
therefor  are  rightfully  decided  by  the  laws,  solely,  of  the  State 
or  country  where  he  is  appointed. 5 

'Davis  z/.  Est ey,  8  Pick.  475  ;  Mitch-  v.    Kennedy,   8   Ala.   391  ;  Marrion  v. 

ell   V.  Cox,    22   Ga.    32;    Normand    v.  Titsworlh,   18  B.  Mon.  582;    Grant  v^ 

Grognard,  14  N.  J.  L.  425.  Reese,  94  N.  C.  720.     As  to  a  -widow's 

^151  Mass.  604.  petition  to  a  foreign  jurisdiction  to  have 

3  lb.  the  administrator  removed,  see  50  Mich. 

*Welles's  Estate,  161   Penn.  St.  218.  22.     Local    a.ssets    should  be  retained 

*  Partington  v.  Attorney-General,  L.  long  enough  to  give  every  local  creditor 

R.  8   H.   L.   100,  119;  Fay  z'.  Haven,  3  the  usual  statutory    recourse,    notwith- 

Met.  109;  Hooper  v.  Olmstead,  6  Pick,  standing  his  right  of  action  does  not  at 

481  ;  Heydock's  Appeal,  7  N.  H.  496;  once   accrue.     Newell  v.   Peaslee,   151 

Lawrence   v.    Elmendorf,   5    Barb.  73;  Mass.  601. 
McGehee  v.  Polk,  24  Ga.  406 ;  Kennedy 

248 


CHAP.   VU.]    FOREIGN'  AND  AN'CII.LARV  APPOINTMENTS.  §    I  75 

§  175-  I^uty  of  the  Domestic  Representative  as  to  Foreign  As- 
sets. —  The  earlier  rule  frequently  asserted  in  England  in  one 
loose  form  or  another,  is  that  assets  in  any  part  of  the  world 
shall  be  assets  for  which  the  domestic  executor  or  administra- 
tor is  chargeable  ;  the  practical  effect  being  to  enjoin  upon  the 
principal  personal  representative  the  duty  of  procuring,  so  far  as 
foreign  law  and  the  peculiar  circumstances  will  permit,  personal 
assets  wherever  situated  ;  realizing  the  bulk  of  the  estate  of  his 
decedent  as  best  he  may,  gathering  in  the  property  as  one  who 
represents  the  whole  fortune,  and  having  gathered  it,  account 
to  those  interested  accordingly.'  Some  of  the  judicial  expres- 
sions on  this  point,  to  be  sure,  import  too  onerous  a  responsibil- 
ity on  the  representative's  part  ;  and  Mr.  Justice  Story  has 
pointed  out  the  fallacy  of  holding  a  domestic  executor  or  ad- 
ministrator answerable  for  foreign  property  which  it  is  admitted 
that  he  can  neither  collect  nor  sue  upon,  nor  compel  its  pay- 
ment or  delivery  to  himself  by  virtue  of  his  domestic  appoint- 
ment ;  ^  foreign  property,  we  may  add,  of  whose  existence,  or 
of  the  grant  of  foreign  administration  for  realizing  it  as  assets, 
he  may  be  quite  unaware. ^ 

And  yet,  to  let  external  assets  knowingly  escape  his  control, 
and  be  lost  to  the  estate,  when  with  reasonable  diligence  they 
might  have  been  procured,  seems  a  plain  dereliction  of  duty  in 
the  principal  or  domiciliary  representative  ;  whose  function,  as 
rightly  understood,  is  to  grasp  the  whole  fortune,  as  the  dece- 
dent did  during  his  life,  save  so  far  as  the  obstructive  law  of 
foreign  situs  or  the  limitations  of  his  own  appointment  may  re- 
strain him.  If,  therefore,  assets  cannot  be  collected  and  real- 
ized for  the  benefit  of  the  estate,  without  a  foreign  ancillary  ap- 
pointment, the  executor  or  administrator  of  the  decedent's  last 
domicile  ought  (so  far  as  may  be  consistent  with  his  information, 
the  means  of  the  estate  at  his  disposal  and  the  exercise  of  a 
sound  discretion),  to  see  that  foreign  letters  are  taken  out  and 

'Touchst.    496;     Wm.    Exrs.    1661,         ^  Story    Confl.   Laws,   §514  a,   com- 
1662 ;    Attorney-General  v.  Dimond,    i     menting  upon  Dowdale's  Case,  Cro.  Jac. 
Cr.  &  Jerv.   157;    Attorney-General  v.     55,  6  Co.  47  b. 
Bouwens,  4  M.  &.  W.  171,  192.  Mb. 

249 


§    175  EXECUTORS    AND    AIV.riXISTRATORS.  [PART  II. 

that  those  assets  are  collected  and  realized,  and  the  surplus 
transmitted  to  him.  If,  as  frequently  happens,  the  domestic 
representative  may  collect  and  realize  such  property  in  the  do- 
mestic jurisdiction,  as  by  selling  negotiable  bonds,  bills,  notes 
or  other  securities,  payable  abroad  ;  or  by  delivering  bills  of 
lading  or  other  documents  of  title  (indorsing  or  assigning  by 
acts  of  his  own  which  would  be  recognized  as  conferring  the 
substantial  title  in  such  foreign  jurisdiction),  or  otherwise  by  ef- 
fectually transferring  property  of  a  chattel  nature,  situated  or 
payable  elsewhere,  which  is  capable,  nevertheless,  of  being  trans- 
ferred by  acts  done  in  the  domestic  jurisdiction,  he  should  be  held 
accountable  for  due  diligence  as  to  such  net  assets.'  And  so, 
too,  if  he  may  enforce  the  demand  against  the  debtor,  without 
resort  to  the  foreign  jurisdiction.^  If,  however,  foreign  letters 
and  an  ancillary  appointment  at  the  sij?is  be  needful  or  prudent, 
in  order  to  make  title  and  to  collect  and  realize  such  assets, 
the  principal  representative  should  perform  the  ancillary  trust 
or  have  another  perform  it,  observing  due  diligence  and  fidelity, 
according  as  the  laws  of  the  foreign  jurisdiction  may  permit  of 
such  a  course ;  and  if,  in  accordance  with  those  foreign  laws, 
a  surplus  be  transmitted  to  the  principal  and  domiciliary  repre- 
sentative, or  otherwise  transferred,  so  as  to  be  held  by  him  in 
such  capacity  for  payment  and  distribution,  he  will  become  lia- 
ble for  it,  accordingly. 3 

Whether,  then,  the  principal  or  domiciliary  representative  be 
required /;v  forma  or  not,  to  include  in  his  inventory  assets 
which  come  to  his  knowledge,  either  situate  in  the  State  or 
country  of  principal  and  domiciliary  jurisdiction,  or  out  of  it,  his 
liability,  as  to  assets  of  the  latter  .sort,  depends  somewhat  upon 
his  means  of  procuring  them,  and  the  fact  of   an  ancillary  ad- 

'  Attorney-General  v.  Bouwens,  4  M.  diction  of  the  appointment.     Merrill  v. 

&  W.  171,  i()2, per  Lord  Abinger;  Tre-  N.  E.  Mut.  Life  Ins.  Co.,  103  Mass.  245. 
cothick  V.  Austin,  4  Ma.son,  ■^t,  ;  Hutch-         ^  Attorney-General  v.  Dimond,  i  Cr. 

ins  V.  State  Bank,  12  Met.  421 ;    Butler,  &  Jerv.  370;  Ewin,  In  re;  1 1  Cr.  &  Jerv. 

Estate  of,  38  N.  Y.  397.  157;  Wms.    Exrs.    1661  ;    Jennison   v. 

^As  where  the  principal  representa-  Hapgood,  10  Pick.  78;  Clarke.  Black- 

tive  holds  the  evidence  of  the  demand  ington,  1 10  Mass.  372  ;  Stokely's  Estate, 

or  the  document  of  title,  and  finds  the  19  Penn.  St.  476. 
debtor  or  his  property  within  the  juris- 

250 


CHAP.  VII.]    FOREIGN  AND  ANCILLARY  APPOINTMENTS.  §    1 76 

ministration  in  the  situs  of  such  assets.'  In  any  case  he  is 
bound  to  take  reasonable  means,  under  the  circumstances,  for 
collecting  and  realizing  the  assets  out  of  his  jurisdiction ;  nor  is 
his  liability  a  fixed,  absolute  one,  but  dependent  upon  his  con- 
duct ;  and  it  is  getting  the  foreign  assets  into  his  active  control 
that  makes  a  domestic  representative  chargeable  as  for  the 
property  or  its  proceeds,  rather  than  the  duty  of  pursuing  and 
recovering  such  assets.' 

If  assets  situated  in  another  jurisdiction  come  into  the  pos- 
session of  the  executor  or  administrator  in  the  domiciliary  juris- 
diction, by  a  voluntary  payment  or  delivery  to  him,  without 
administration  there,  it  follows  that  he  should  account  for  them 
in  the  domiciliary  jurisdiction  whose  letters  were  the  recognized 
credentials  in  the  case.^  And  it  is  held  in  several  American 
cases,  consistently  with  this  rule,  that,  no  conflicting  grant  of 
authority  appearing,  the  domiciliary  appointee  of  another  State 
may  take  charge  of  and  control  personal  property  of  the  de- 
ceased in  the  State  of  its  situs.-* 

§  I  j6.  Voluntary  Surrender  of  Assets  in  Local  Jurisdiction  to 
Domiciliary  Administrator.  —  The  powers  of  a  representative  be- 
ing referable  to  the  laws  of  the  country  or  State  from  which  he 
derives  his  authority,  a  foreign  executor  or  administrator  can 
only  collect  assets  in  another  jurisdiction  by  virtue  of  a  legisla- 
tive or  sovereign  permission.  Such  legislative  permission  is 
accorded  on  various  terms ;  and  the  terms  of  such  permission 
must  be  complied  with.'  We  have  seen  that  the  representative 
is  usually  confined,  in  suits  for  the  recovery  of  assets,  to  the 
territorial  jurisdiction  of  his  appointment,  and,  subject  to  an 
ancillary  appointment,  to  procuring  the  residuum,  after  satisfying 
the  claims  and  rights  of  residents  in  the  ancillary  jurisdiction.'' 

'  See    Schultz  v.    Pulver,    1 1    Wend.  v.  Brashear,  2  B.  Mon.  380 ;  Denny  v. 

363;  Butler,  Estate  of,  38  N.  Y.  397.  Faulkner,  22  Kan.  89. 

'^  See  Wms.  Exrs.  1664,  and  Perkins's  ^  Harrison  v.  Mahorner,  14  Ala.  843 ; 

note  if  Young  v.  Kennedy,  95  N.  C.  265)  supra,  §  173. 

*  Van  Bokkelen  v.  Cook,  5  Sawyer,  ^  Supra,  §  174.  Wherever  the  title 
C.  C.  587.  to  the  corporeal   thing,  or  incorporeal 

*  Vroom  z\  Van  Horn,  10  Paige,  549.  right  owned  by  the  decedent,  becomes 
Parsons  v.  Lyman,  20  N.  V.  103  ;  Barnes  so  perfected  in  the  representative  under 

251. 


§    1/6  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

But  may  not  the  title  and  authority  of  a  foreign  domiciliary  rep- 
resentative be  voluntarily  recognized  and  debts  paid  him,  or 
other  assets  voluntarily  surrendered  to  him  there  ?  The  doc- 
trine of  the  English  courts  is,  that  such  payment  or  surrender 
affords  no  protection  against  the  claim  of  a  local  administra- 
tor." A  preference  for  the  English  doctrine  seems  to  be  ex- 
pressed in  Justice  Story's  treatise,  though  he  had  judicially 
affirmed  the  contrary  in  a  circuit  decision.''  The  Supreme  Court 
of  the  United  States,  however,  has  maintained  the  validity  of 
such  payments  or  delivery  of  the  assets,  as  between  different 
States,  so  as  to  discharge  the  local  debtor  or  possessor ;  and 
the  general  current  of  American  authority  supports  this  doc- 
trine ;  there  being,  it  is  assumed,  when  such  payment  or  delivery 
was  made,  no  local  administration. ^  But  this  rule  cannot  be 
upheld,  to  the  extent  of  violating  the  local  law  of  the  jurisdic- 
tion where  the  assets  lie ;  and  each  State  or  country  has  the 
right  to  enlarge  or  limit  the  privilege  and  to  prescribe  the  terms 
upon  which  it  shall  be  conceded,  or  to  deny  it  altogether.'* 

Wherever  the  domiciliary  executor  or  administrator  may  pro- 
cure assets  of  the  deceased  from  the  local  jurisdiction,  without 

the  foreign  administration,  that  a  local  the  payment  is  a  valid  discharge  every- 

and  domestic  appointment  would  be  in-  where.     If   the    debtor    being    in   that 

appropriate,  he  should  be  permitted  to  State  is  there  sued  by  the  administra- 

procure  or  sue,  as  it  seems,  without  a  tor,    and  judgment    recovered    against 

local  appointment.     Purple  v.  Whithed,  him,  the  administrator  may  bring   suit 

49  Vt.  187.  in  his  own  name  upon  that  judgment  in 

'  Whart.  Confl.   Laws,  §  626 ;  supra,  the  State  where   the    debtor    resides." 

§  172.     See  Eames  v.  Hacon,  50  L.  J.  Mr.  Justice  Gray  in  Wilkins  v.   Ellett, 

Ch.  740.  ib.  supra,  §  173. 

^  Story  Confl.  Law.s,  §515  a  :  Treco-  ■•  Ib.     Perhaps  this  doctrine  of  vol- 

thick  V.  Austin,  4  Mason,  16.  untary  recognition  is   especially  to  be 

^  Mackey   v.    Coxe,    18     How.    104;  favored  where  payment  or  delivery  was 

Hutchins  z*.  State  Bank,   12  Met.  425  ;  made  to  the  domiciliary  executor  under 

Wilkins  f.  Ellett,  9  Wall.  741  ;  Parsons  a  probated  will.     See  Shaw,   C.   J.,  in 

V.  Lyman,  20  N.  Y.  103  ;  Abbott  7/.  Mil-  Pond  v.  Makepeace,  2  Met.  1 14.    Where 

ler,   10  Mo.   141  ;  W^hart.   Confl.  Laws,  a  debtor  makes  payment  of   a  naked 

§  626 ;  Hatchett  v.  Berney,  65  Ala.  39,  debt  to  the  principal  administrator  of 

per  Brickell,   C.   J. ;  Citizens'  Bank  v.  his  foreign  creditor,   he  may  be  com- 

Sharp,  53  Md.  521  ;   Wilkins  v.  Ellett,  pelled  to  pay  it   again  to   a  domestic 

108  U.  S.  256,  258.     "If  a  debtor,  re-  representative  subsequently  appointed, 

siding  in  another  State,  comes  into  the  and  suing  for  it  in  the  debtor's  own 

State  in  which    the  administrator  has  jurisdiction.    Young?'.  O'Neal,  3  Sneed. 

been   apiiointcd,    and   there   pays    him,  55.     Cf.  Mackey  v.  Coxe,  supra. 

252 


CHAF.    Vll.]    FOREIGN  AM)  ANCILLARY  APPOINTMENTS,  §    I  7/ 

being  obstructed  by  local  claimants  upon  the  estate,  or  by  a 
local  executor  or  administrator,  and  without  having  to  invoke 
the  aid  of  the  local  courts,  his  rights  are  favorably  regarded  in 
many  of  the  later  decisions.  For,  if  local  claims  are  satisfied 
out  of  the  estate,  the  local  sovereignty  can  rarely  complain.' 

§  177-  Liability  of  Representative  in  Domestic  Jurisdiction  for 
Acts  done  Abroad. —  How  far  executors  or  administrators  are 
liable  in  a  domestic  jurisdiction  for  acts  done  abroad,  does  not 
appear  clearly  settled ;  and  different  States  or  countries  may  be 
expected  to  uphold  their  own  legislative  policy  in  preference  to 
external  systems.  Beyond  what  has  been  already  stated  as  to 
holding  a  domestic  representative  responsible  for  assets  received 
from  abroad,  and  requiring  a  principal  representative  to  pursue 
assets  in  an  ancillary  jurisdiction,  it  would  appear  that  a  legal 
liability  upon  one's  domestic  statutory  bond  should  be  construed 
somewhat  strictly  with  reference  to  the  statute  in  question.^ 
But  one  may  be  charged  in  equity,  as  trustee,  for  the  misappli- 
cation of  funds  received  from  abroad.  And  in  some  States  it 
is  held  that,  if  foreign  executors  or  administrators  come  within 
the  jurisdictional  limits  of  the  State,  they  are  liable  to  be  held 
by  creditors  or  to  be  brought  to  account  by  legatees  or  dis- 
tributees;^ while  in  other  States  the  rule  appears  to  be,  that 
the  representative  cannot  be  sued  elsewhere,  even  on  a  judg- 
ment rendered  against  him  in  the  State  of  his  appointment,  or, 
at  all  events,  if  charged  in  his  representative  character,  and  not 
de  bonis  propriis.'^ 

'  An  executor  or  administrator  under  jurisdictions  may  have  rendered  requi- 

letters  granted  at  the  domicile  of  the  site  for  local  protection.     51  N.  J.  L.  78. 

deceased    may  receive    and    discharge  ^  Cabanne    v.   Skinker,  56  Mo.  357. 

debts  voluntarily  paid  him  in  another  ^  Johnson  v.   Jackson,  55   Ga.  326; 

jurisdiction;    may   transfer    negotiable  Swearingen    v.    Pendleton,    4   S.  &  R. 

choses  in  action  so  as  to   enable  the  389;  Gulick   v.    Gulick,    ^o    Barb.    92. 

transferee  to  sue  in  his  own  name  in  See  this  subject  discussed  with  conflict- 

the  courts  of   another  State;  and  may  ing  citations.     Story  Confl.  Laws,  §  514, 

receive  dividends  on  and  sell  and  trans-  b  ;  Wms.  Exrs.  362,  1929,  and  Perkins's 

fer  stock  in  a  corporation  of  another  notes. 

State.  All  this,  inasmuch  as  domiciliaiy  '•Pond  v.   Makepeace,   2   Met.    114; 

letters  vest  the  entire  personal   estate,  Willard  v.   Hammond,   21    N.  H.  382 ; 

subject  to  the  limitations  which  other  Wms.  Exrs.  362,  note  by  Perkins.     Ex- 


§    178  EXECUTORS    AND    ADMINISTKATORS.  [PART  II. 

§  178.  Permitting  Foreign  Creditors  to  sue  in  the  Local  Juris- 
diction.—  Upon  reciprocal  terms,  foreign  creditors  are  some- 
times permitted  to  come  into  the  domestic  jurisdiction  and 
prosecute  their  claims  against  the  local  assets ;  not,  however,  in 
such  a  way  as  to  gain  an  advantage  over  domestic  creditors ; 
and,  in  general,  they  may  fairly  be  required  to  exhaust  the  for- 
eign assets  before  attempting  to  have  domestic  assets  subjected 
to  their  claims.'  Furthermore,  a  judgment  rendered  against 
the  foreign  administrator  furnishes  no  right  of  action  against 
the  domestic  administrator  unless  it  appears  that  the  latter  has 
transmissible  assets.- 

But  a  judgment  against  one,  in  his  character  of  executor  or 
administrator,  is  not  usually  entitled  to  operate  in  another  State 
w^ith  greater  extent  or  force  than  in  the  State  where  it  was  re- 
covered.^  And  where  a  demand  against  the  estate  of  a  deceased 
non-resident  is  barred  by  the  laws  of  the  State  where  he  was 
domiciled  at  the  time  of  his  death,  it  is  equally  barred  in  another 
State.4 

The  attempt  of  a  domiciliary  creditor,  who  cannot  prosecute 
his  claim  in  the  jurisdiction  of  last  domicile,  to  enforce  that 
claim  upon  assets,  by  procuring  letters  in  another  jurisdiction, 
is  not  to  be  countenanced;  and  letters  procured  by  him,  on  the 
allegation  that  he  is  a  creditor,  are  improperly  obtained. 5 

ecutors  cannot  be  called  to  account  in  also  warrant  it  in  imposing  on  him  a 

a  State  wherein  the  will  has  not  been  similar  restraint  with  regard  to  proceed- 

proved.     Cocks  v.  Varney,  42  N.  J.  Eq.  ing  in  a  foreign  court.     But  it  is  held  in 

514.  England  that  chancery  is  not  warranted, 

'  Fellows    V.    Lewis,    65    Ala.    343 ;  even   where   an    administration   decree 

Morton  v.  Hatch,  54  Mo.  408.  has  been  obtained,  to  restrain  a  foreign 

^  Carrigan  v.  Semple,  72  Tex.  306;  creditor  from  proceeding  in  a  foreign 

28  Tex.  503;  Ela  v.  Edwards,  13  Allen,  court  against  the  administrator.    Carron 

48;  Stacy  V.  Thrasher,  6  How.  57.  Iron  Co.  v.  Maclaren,  5  H.  L.  Cas.  416; 

^  Coates  V.  Mackey,  56  Md.  416.  Crofton  v.  Crofton,  29  W.  R.  169.     A 

*  Wernse  v.  Hall,  loi  111.  423.  judgment     obtained,    however,   against 

*  Wernse  v.  Hall,  loi  HI.  423.  If  the  administrator  by  default  in  such 
the  circumstances  of  a  case  are  such  as  proceedings  would  appear  to  be  only 
would  make  it  the  duty  of  one  domestic  prima  facie  evidence  of  the  debt.  Crof- 
court  to  restrain  a  party  from  proceed-  ton  v.  Crofton,  29  W.  R.  169. 

ing  in  another  domestic  court,  they  will 

254 


CHAP.   VII.]    FOREIGN  AND  ANCILLARY  APPOINTMENTS.  §    I  79 

§  I  79.  Principal  and  Ancillary  Jurisdictions,  ho'w  far  Independ- 
ent of  One  Another.  —  It  is  held,  in  the  Supreme  Court  of  the 
United  States,  that  different  executors  of  the  same  testator, 
appointed  by  his  will  in  different  States,  are  in  privity  with  each 
other,  and  bear  the  same  responsibihty  to  creditors  of  the  tes- 
tator as  if  there  were  only  one  executor ;  and  hence,  that  a 
judgment  against  the  executors  in  one  State  is  evidence  against 
those  in  another  State.'  But  as  to  administrators,  whose  ap- 
pointments are  necessarily  derived  from  different  sovereign 
jurisdictions,  there  is  no  such  privity;  and,  according  to  the  uni- 
versal American  rule,  where  uncontrolled  by  local  statute,  so 
independent  are  different  ancillary  administrations  of  the  prin- 
cipal administration  and  of  each  other,  whether  in  case  of  testacy 
or  intestacy,  that  property  and  assets  received  in  the  one  forum 
cannot  be  sued  for  nor  its  application  compelled  in  another,  nor 
can  a  judgment  obtained  in  one  such  jurisdiction  furnish  con- 
clusive cause  of  action  in  another.^ 

But  the  forum  of  original  administration  is  the  forum  in  which 
the  final  account  is  to  be  made ;  and  this  forum,  though  treat- 
ing the  allowance  of  probate  accounts  in  the  ancillary  jurisdic- 
tion as,  for  the  most  part,  conclusive  of  items  there  so  returned, 
sometimes  reviews  independently  fundamental  questions  involv- 
ing fraud  and  error  in  such  ancillary  administration,  and  affect- 
ing the  distribution  of  the  estate.^ 

Foreign  executors  and  administrators  cannot  merely  by  virtue 
of  their  offices  either  prosecute  or  defend  actions  in  the  courts 

■  Hill  z/.  Tucker,  13  Plow.  458 ;  Good-  ment,   see   Barton  v.   Higgins,  41   Md. 

all  V.  Tucker,  ib.  469.  539;  Talmage  v.  Chapel,   16  Mass.  71. 

^  Mr.  Justice  Wayne  in  Hill  v.  Tucker,  The  possession  of  land  by  the  local  ad- 
siip7-a  ;  Harvey  v.  Richards,  i  Mason,  ministrator  for  local  administration  can- 
415, /^r  Mr.  Justice  Story;  Taylor  v.  not  be  disturbed  by  the  foreign  and 
Barron,  35  N.  H.  484  ;  Wms.  E.xrs.  363,  domicihary  executor  for  the  purpose  of 
and  Perkins's  n. ;  King  v.  Clarke,  2  selling,  until  such  local  debts  and  ad- 
Hill  (S.  C.)  Ch.  611;  2  Kent  Com.  ministration  charges  are  settled.  Ap- 
434;  Fay  V.  Haven,  3  Met.  109,  and  person  z/.  Bolton,  29  Ark.  418;  Sheldon 
cases  cited ;  Hedenberg  v.  H'edenberg,  v.  Rice,  30  Mich.  296. 
46  Conn.  30;  Magraw  v.  Irwin,  87  ^  Clark  v.  Blackington,  no  Mass. 
Penn.  St.  139;  McCord  v.  Thompson,  369;  Ela  v.  Edwards,  13  Allen,  48; 
92  Ind.  565.     But  as  to  foreign  judg-  Baldwin's  Appeal,  81  Penn.  St.  441. 


§    l80  EXECUTORS    AND    ADMINISTRATORS.  [PART  II, 

of  Other  States  or  countries.'  The  disability  is,  however,  re- 
moved in  some  instances  by  local  statute ;  -  and  in  others  by 
bringing  part  of  the  assets  into  the  jurisdiction. ^  And  in  the 
cases  where  the  representative  is  not  permitted  to  sue  as  such, 
in  a  foreign  jurisdiction,  it  is  usually  found  that  the  subject- 
matter  of  the  suit  is  the  subject  of  local  administration  within 
such  foreign  jurisdiction.'*  Nor  is  an  executor  or  administrator 
suable,  as  a  rule,  in  a  foreign  jurisdiction.5 

§  1 80.  Responsibility  "wrhere  the  same  Person  is  Principal  and 
Ancillary  Representative.  —  The  want  of  privity  between  differ- 
ent administrators  in  different  States  has  been  so  much  insisted 
upon  in  this  country,  that  American  authorities  may  be  found, 
apparently  to  the  effect  that  a  person  who  is  administrator  of 
the  same  estate  in  different  States,  and  who  has  received  assets 
under  both  administrations,  cannot  be  compelled  to  account  for 
any  such  assets,  except  in  the  place  where  they  were  received.^ 
We  apprehend  that  this  is  not  entirely  accurate,  inasmuch  as  a 
point  may  be  reached  where  the  transfer  of  surplus  assets  from 
the  ancillar}'  to  the  principal  administrator  may  be  said  to  have 
actually  taken  place  ;  and  because,  moreover,  as  we  have  shown, 
the  principal  is  so  far  related  to  the  ancillary  administrator, 
meanwhile,  that  a  certain  duty  exists  of  which  he  cannot  divest 
himself,  namely,  to  hold  the  latter  to  his  trust  of  making  a 
transfer  in  conformity  with  the  local  law.  And  in  accordance 
with  this  latter  view,  it  is  ruled  that  where  the  administration, 

'  Vaughan  v.   Northup,    15    Pet.    i:  the  ancillary'  jurisdiction  or  not.     Du 

Noonan  v.  Bradley,  9  Wall.  394 ;  Story  Val  v.  Marshall,  30  Ark.  230. 

Confl.  Laws,  §  513;   Wms.  Exrs.  1641.  -'  Jefferson  i.  Beall,  117  Ala.  436,  and 

*  See  §  post.  cases  cited.     "  The  accepted  theory  of 
'  Supra,    §    25.     But    see    Martin  v.  administration  is  that  the  right  and  lia- 

Gage,  17  N.  E.  310.  bility  is  purely  representative,  and  exists 

*  Purple  V.  Whithed,  49  Vt.  187;  only  by  force  of  the  official  character, 
Kilpatrick  v.  Bush,  23  Miss.  199.  Where  and  so  cannot  pass  beyond  the  jurisdic- 
an  ancillary  administration  is  had,  the  tion  which  grants  it,  and  reserves  to 
executor  or  administrator  of  the  domi-  itself  full  and  exclusive  authority  over 
cile  cannot  withdraw  or  dispose  of  the  all  the  assets  of  the  estate  within  its 
anciUary   assets,  by  direct    or   indirect  limits."     117  Ala.  439. 

means,  until  the  ancillarj-  administration  •"  Stacey  t'.  Thrasher.  6  How.  44 ; 
is  settled,  whether  debts  are  found  in     Aspden  v.   Nixon,  4    How.   467  ;  com- 

256 


CHAP.   VII.]    FOREIGN  AND   ANCILLARY   APPOINTMENTS.  §    l8l 

both  at  home  and  abroad,  has  been  taken  out  by  the  same  per- 
son, the  presumption  is  that  he  has  done  his  duty ;  and  when 
he  comes  to  settle  his  account  in  the  State  where  distribution 
is  to  be  made,  he  cannot  deny  that  he  has  received  what  the 
foreign  administrator,  if  he  had  been  a  different  person,  would 
have  been  compelled  to  pa}-,  and  what  he  would  have  been 
bound  in  duty  to  demand  and  get.'  And  the  rational  rule  is 
that,  the  full  and  final  settlement  being  made  in  the  jurisdiction 
of  last  domicile,  the  principal  representative  must  be  held  to 
account  in  the  domiciliary  jurisdiction  for  the  whole  of  the  per- 
sonal property  which  has  come  to  his  hands,  wherever  found, 
or  by  whatever  means  collected ;  so  that  if  he  has  a  surplus  in 
his  hands  arising  out  of  the  administration  elsewhere,  after  pay- 
ing the  expenses  of  administration  and  discharging  his  own 
liabilities  there,  he  becomes  accountable  for  it  in  the  domiciliary 
jurisdiction  in  the  same  manner  as  he  would  be  if  another  had 
been  appointed  administrator  and  had  paid  o\cr  a  balance.^ 

But  where  the  same  person  is  appointed  administrator  in  two 
different  States,  each  with  its  own  separate  fund  for  the  due 
settlement  of  debts,  funeral  and  burial  expenses  and  adminis- 
tration charges,  he  is  not  bound  to  see  that  either  estate  is 
exonerated  at  the  expense  of  the  other,  but  should  administer 
and  dispose  of  each  fund  in  good  faith  as  the  local  law  may  re- 
quire, so  as  to  satisfy  local  claims.^ 

§  I  8 1 .  Aucillary  or  Local  Representative,  how  far  Responsible 
for  Assets.  —  Since  the  ancillary  or  local  representative  repre- 
sents only  the  assets  of  his  particular  jurisdiction,  he  is  not  re- 
sponsible for  assets  in  other  jurisdictions  ;  nor  in  such  capacity 
alone,  and  independently  of  some  appointment  conferred  in  the 
jurisdiction  of  the  decedent's  last  domicile  or  residence,  does  it 
appear  that  he  has  any  right  to  follow  assets  elsewhere.  His 
duty  is  to  apply  the  local  assets  as  the  local  laws  may  have  de- 
mented upon  in  Story  Confl.  Laws,  *  Jennison  v.  Ilapgood,  lo  Pick.  77, 
§  529  (<■  100. 

■  Black.  C.  J.,  in  Stokely's  Estate,  19         ^  Cowden  v.  Jacobson,  165  Mass.  240. 
Penn.  St.  476,  482.     And  see  Baldwin's 
Appeal,  81  Penn.  St.  441. 

17  257 


§    183  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

termined  ;  paying  local  creditors,  as  such  laws  usually  direct, 
and  remitting  the  surplus  as  the  local  court  may  order.  But 
even  an  ancillary  and  local  administrator,  who  receives  assets 
from  some  jurisdiction  to  which  his  authority  did  not  extend,  has 
no  right  to  pervert  them  to  his  own  use.' 

An  ancillary  or  local  administrator  has  no  authority,  under 
the  general  limitations  imposed  by  the  rule  of  comity,  to  allow 
and  pay  claims  of  residents  of  the  State  or  country  where  the 
principal  administration  was  granted,  especially  where  the  claims 
originated  abroad.^ 

§  182.  Where  different  Executors  are  named  in  a  "Will  for  dif- 
ferent Sovereign  Jurisdictions.  —  We  have  seen  that  a  testator 
may  name  one  executor  or  set  of  executors  for  one  State  or 
country,  and  another  for  another  State  or  country.^  And  if,  in 
doing  so,  he  confines  their  duties  to  their  respective  jurisdic- 
tions, the  case  is  not  one  of  principal  and  auxiliary  appoint- 
ments. The  fact  that  the  executor  of  one  locality  has  the  same 
right  to  control  assets  here  that  the  executor  of  another  locality 
has  to  control  assets  there,  is  hostile  to  the  supposition  that  the 
executor  of  the  last  domicile  shall  be  bound  to  charge  himself 
with  the  assets  abroad.  The  executor  of  last  domicile  may 
well  demand  that  the  assets  be  surrendered  to  him  ;  but  there 
his  duty  ends,  provided  he  has  not  the  means  to  compel  the  sur- 
render of  such  assets."* 

§  183.  Where  the  Principal  Representative  cannot  procure 
Foreign  Assets,  Legatees  or  Distributees  may  pursue.  —  Where, 
by  reason  of  the  law  in  the  jurisdiction  of  foreign  administra- 
tion, or  otherwise,  it  appears  impracticable  for  the  domestic  rep- 

'  See  Bald\s-in's  Appeal,  81  Penn.  St.  the  same  footing  as   other  administra- 

441  ;  Wms.  Exrs.  432;  Fay  v.  Haven,  tions.    Carr  71.  Lowe,  7  Heisk.  84.    See 

3  Met.  109;  Norton  v.  Palmer,  7  Cush.  Cureton  v.  Mill.s,  13  S.  C.  409. 

523.     Local  statutes  may  be  found  to  -  Story  Confl.  Laws,  §§  334,  336,  337  ; 

modify  these  rules.      In   some    States  2  Kent  Com.  434;  Shegogg  v.  Perkins, 

there  is  no  statutory  provision  for  ancil-  34    Ark.    117    and  cases    cited  in   the 

lary  admini.strations  as  a  distinct  spe-  opinion  of  the  court;  sitpra,  §  15. 

cies  ;  but  administrations  granted  upon  ^  Supra,  %  ^,2. 

the  estates  of  non-residents  stand  upon  *■  Sherman  v.  Page,  85  N.  Y.  123. 

258 


CHAP.   VII.]     FOREIGN   AND  ANCILLARY  APPOINTMENTS.  §    I  83 

resentative,  appointed  in  the  decedent's  last  domicile,  to  procure 
the  control  of  the  foreign  assets  or  surplus  of  foreign  adminis- 
tration, it  remains  for  the  legatees  or  distributees,  by  such  pro- 
cedure in  the  foreign  jurisdiction  as  may  be  suitable,  to  obtain 
what  belongs  to  them  ;  and  if  the  name  of  the  domestic  repre- 
sentative should  be  needful  in  such  proceedings,  the  use  of  it 
may  be  granted  upon  proper  terms.' 

■  Sherman  v.  Page,  85  N.  Y.  123,  129. 
259 


§  i84 


EXECUTORS  AND  ADMIMSTRATORS.      [PART  H, 


CHAPTER  VIII. 

OFFICIATING    WITHOUT    AN    APPOINTMENT. 

§  1 84.  Executor  de  son  Tort  at  Cominoii  Law  defined.  —  Eng- 
lish ecclesiastical  law  has  long"  applied  an  ofhcial  name  to  an  un- 
official character  ;  styling  as  executor  dc  son  tort  (or  executor  of 
his  own  wrong)  whoever  should  officiously  intermeddle  with  the 
personal  property  or  affairs  of  a  deceased  person,  having  received 
no  ap}:)ointment  thereto.  This  designation  is  not  apt,  since  it 
applies  the  term  "  executor  "  as  well  to  intestate  as  to  testate 
estates,  and  signifies,  moreover,  that  the  person  who  intruded 
his  services  had  no  legal  authority  in  any  sense.  But  courts 
have  not  clearly  discriminated  in  the  definition.'  In  several 
American  States  the  title  executor  de  son  tort  is  now  simply  re- 
pudiated ;  ^  and  yet  one's  exercise  of  functions  which  properly 


'  Wms.  Exis.  257  ;  Bennett  v.  Ives, 
30  Conn.  329 ;  Wilson  v.  Hudson,  4 
Harr.  168  ;  Barron  v.  Burney,  38  Ga. 
264;  Brown  v.  Durbin,  5  J.  J.  Marsh. 
170;  White  V.  Mann,  26  Me.  361  ; 
Leach  <■.  Pittsburg,  15  N.  H.  137; 
Emery  v.  Berry,  8  Fost.  473 ;  Scoville 
V.  Post,  3  Edw.  (N.  Y.)  203;  Hubble  I/. 
Fogartie,  3  Rich.  413.  WilUams  ob- 
serves (Wms.  Exrs.  7th  ed.  257,  «.)  that 
the  definition  of  an  executor  de  sou  tort 
by  Swinburne,  Godolphin,  and  Went- 
worth,  is  in  the  same  words ;  viz. :  "  He 
who  takes  upon  himself  the  office  of 
executor  by  intrusion,  not  being  so  con- 
stituted by  the  deceased,  nor,  for  want 
of  such  constitution,  substituted  by 
the  [ecclesiastical]  court  to  adminis- 
ter." Swinb.pt.  4,  §  23,  pi.  I  ;  Godolph. 
pt.2,  c.  8,  §  I  ;  Wentw.  Off.  Ex.  c.  14,  p. 
320,  14th  ed.  "But,"  adds  WilHams, 
"the  tenn  is,  in  the  older  books,  some- 


times applied  to  a  lawful  executor  who 
mal-administers ;  as  by  the  I-ord  Dyer 
in  Stokes  v.  Porter,  Dyer,  167  a."  All 
this  might  seem  to  intimate  that  the 
stigma  was  originally  applied  with  exclu- 
-sive  regard  to  estates  where  the  deceased 
person  had  left  a  will.  But  the  modern 
cases  above  cited  make  it  clear  that  the 
significance  of  executor  de  son  tort  is 
not  so  confined  in  modern  practice;  for 
the  rule  now  is  that  a  party  intermed- 
dling with  the  estate  of  a  deceased  per- 
son, and  doing  acts  which  an  executor 
or  administrator  alone  may  do,  will 
make  himself  liable  as  executor  de  son 
tort. 

="  Field  V.  Gibson,  20  Hun  (N.  Y.) 
274  ;  Fox  V.  Van  Norman,  1 1  Kan.  214; 
Ansley  v.  Baker,  14  Tex.  607  ;  Bara- 
sien  V.  Odum,  17  Ark.  122;  107  Ala. 
355:  73  Cal.  459. 


260 


CHAP.   VIII.]     OFFICIATING   WITHOUT   AN   APPOINTMENT.  §    1 85 

pertain  to  administration  without  proper  credentials,  may,  by 
whatever  name  we  call  it,  be  brought  to  the  attention  of  legal 
tribunals  in  any  age  or  country. 

§  185.  Various  Circumstances  under  •which  one  may  act  ■with- 
out having  been  qualified.  —  It  is  obvious  that  one  who  performs 
acts  which  only  a  qualified  executor  or  administrator  could  have 
properly  performed,  may  act  either  as  a  wrong-doer,  utterly 
without  authority,  or  instead,  in  perfect  good  faith,  as  having  a 
colorable  right  and  perhaps  expecting  the  appointment ;  that 
the  acts  performed  may  be  injurious  to  the  estate,  and  obstruc- 
tive of  those  lawfully  entitled  to  its  control,  on  the  one  hand, 
or,  on  the  other,  beneficial  and  fairly  designed  for  its  protection 
pending  the  selection  and  qualification  of  a  legal  representative. 
While,  moreover,  some  person  who,  as  conditions  develope,  can- 
not receive  probate  credentials  from  the  court,  may,  under  one 
or  another  of  such  aspects,  occupy  a  certain  unofficial  relation 
towards  the  estate  of  the  deceased,  the  suitable  executor  named 
in  the  last  will,  or,  if  there  be  no  will,  the  surviving  husband, 
widow,  or  next  of  kin  qualified  to  administer  may,  and  almost 
of  necessity  must,  before  qualification,  perform  certain  acts 
when  death  stops  short  the  machinery  of  an  individual's  affairs ; 
acts  which  of  themselves  cannot  be  regarded  perhaps  as  author- 
ized in  advance  by  any  tribunal,  and  yet  are  appropriate  to  the 
emergency;  acts  which  letters  subsequently  granted  should 
suffice  to  protect.  Besides  this,  there  are  certain  duties  con- 
nected with  supervising  the  funeral  and  burial,  and  involving 
expense  to  the  estate,  which  may  fitly  devolve  upon  one's  im- 
mediate relatives,  rather  than  upon  any  executor  or  administra- 
tor at  all,  and  which  are  usually  performed,  in  fact,  before  any 
examination  of  the  papers  of  the  deceased  serves  to  disclose 
what  last  will,  if  any,  was  left  behind,  how  large  was  the  estate, 
or  who  shall  rightfully  settle  the  affairs. 

According  to  the  different  aspects  above  suggested,  our  mod- 
ern law  pronounces  differently,  as  it  would  seem,  upon  acts  per- 
formed with  reference  to  the  estate  of  a  deceased  per.son  by  one 
who  at  the  time  had  not  been  legally  appointed  and  qualified  to 

261 


§    1 86  EXFXUTORS    AND    ADMINISTRATORS.  [PART  II. 

administer.     These  differing  aspects  we  shall  endeavor  to  con- 
sider apart." 

§  1 86.  "Wrongful  and  Injurious  Dealings  with  a  Dead  Person's 
Estate;  Executor  de  son  Tort. —  It  is  the  wrongful  or  tortious 
intermeddler,  without  claim  or  the  color  of  a  title,  upon  whom 
sound  authorities  in  law  fasten,  in  effect,  the  liabilities  of  execu- 
tor de  sofi  tort,  whether  that  stigma  be  applied  to  the  intruder 
or  not.^  The  old  books  cite,  however,  many  examples  in  te}'- 
rorem,  to  show  that  the  slightest  misappropriation  of  the  goods 
and  chattels  of  a  deceased  person  will  constitute  an  executorship 
de  son  tort,  unless  one  was  a  real  executor  or  administrator ;  as, 
for  instance,  taking  a  bible  or  a  bedstead ;  or  appropriating 
goods  to  one's  own  debt  or  legacy ;  and  even  the  widow  of  the 
deceased  came  within  this  category,  it  was  said,  if  she  milked 
the  cows,  or  took  more  apparel  than  she  was  entitled  to.' 
Wherever  one  killed  the  cattle,  consumed,  wasted,  or  destroyed 
goods  and  effects  of  the  deceased ;  or  sold,  gave  away,  or  loaned 
what  belonged  to  the  dead  person's  estate  ;  he  became  an  execu- 
tor de  son  tort.  Living  in  the  house,  and  carrying  on  the  trade 
of  the  deceased,  was  held  an  intermeddling  in  the  same  sense  ;^ 
so,  too,  paying  debts  or  charges  on  account  of  the  deceased, 
unless  the  payment  was  made  with  one's  own  money  ;5  also  de- 
manding, collecting,  and  giving  acquittances  for  debts  due  the 
estate  of  the  deceased.'^'  All  such  dealings  being  tortious  in 
theory,  one's  agent  or  servant  who  meddled  knowingly  with  the 
assets  of  a  deceascrl  person  might  be  treated  as  executor  de  son 

'  It   has  already  been  seen  that  ad-  Milking  is  needful  for  the  health  of  such 

ministration  has  sometimes  been  wholly  creatures;  and  as  for  so  perishable  a 

dispensed  with.     §  120.  commodity  as  milk,  it  is  for  the  best 

^  See  Smith    v.  Porter,  35  Me.  287  ;  interest  of  an  estate  that  it  should  be 

Ward  V.  Bevill,   10  Ala.  197  ;  Claussen  sold  or  appropriated  at  once,  account 

V.  Lufreuz,  4  Green  (Iowa)  224;   Flem-  being  duly  made  afterwards  for  thepro- 

ings  V.  Jarrat,  i  Esp.  336.  ceeds   to    the    representative   duly   ap- 

^  Wms.    Exrs.    257,    258;  Noy,   69;  pointed. 

Godolph.  pt.   2,  c.  8,  §  4;  Dyer,  166  b.  *  Hooper  v.  Summersett,  Wight,  16; 

It   seems  absurd  that    the  milking  of  Wms.  Exrs.  259. 

cows   by   a  widow  or   another   having  -^  Carter  v.  Robbins,  8  Rich.  29. 

their  cu.stody  should  expo.se  one  to  the  ''  Godolph.    pt.    2,    c.    8,    §  i  ;  Wms. 

liabilities  of  an  executorship  </c  son  tort.  Exrs.  259. 

262 


CHAP.    VIII.]    OFFICI.VriNG   WITHOUT  AN   APPOINTMENT.  §    1 86 

tort,  as  well  as  his  unqualified  principal  or  master."  Creditors, 
too,  who  participated  in  the  wrong  collusively  with  the  widow 
or  kindred,  have  been  held  thus  liable.^ 

Where  a  person  deceased  gave  his  property  to  the  person  in 
whose  house  he  died,  it  was  held  that  the  donee,  by  receiving 
and  using  the  property,  became  an  executor  dc  sou  tort?  And 
generally  one  who  holds  property  of  a  deceased  person  under 
color  of  some  gift  or  sale  from  him  in  fraud  of  the  deceased 
person's  creditors,  may  be  sued  in  that  capacity.'*  So,  too,  may 
a  widow  who  continues,  understandingly,  in  possession  of  her 
deceased  husband's  goods,  and  uses  them  as  her  own ;  5  and  her 
claim  for  support  or  her  interest  in  the  estate  cannot  be  offset 
to  her  full  accounting.'' 

But  acts  performed  towards  one's  property,  by  virtue  of  an 
agency  whose  revocation  by  death  has  not  been  brought  home 
to  the  agent,  will  not  constitute  an  executorship  de  son  tort. 
As  where  a  man  left  home,  having  placed  money  in  the  hands 
of  his  wife,  who  used  it  in  paying  his  debts  and  providing  the 
needs  of  the  family,  before  she  received  knowledge  that  he  had 
died  abroad.^  A  voluntary  conveyance  of  property,  which  is 
disposed  of  during  the  donor's  lifetime,  cannot  be  made  the 
ground  of  a  suit  against  the  donee  as  executor  de  son  tort ;^ 
nor  can  transfers,  by  way  of  security  or  otherwise,  which  were 
made  by  the  deceased  during  his  Ufe,  and  are  unimpeachable  as 
in  fraud  of  his  creditors.^  One  who  takes,  by  purchase  or 
otherwise,  property  of  the  deceased,  shall  not,  unless  in  collu- 

'  vSharland  v.   Mildon,   5   Hare,  468  ;  course  of  settling  the  estate.     Bowdoin 

Turners.  Child,  i  Dev.  L.  331.  v.  Holland,   10  Cush.    17;  Norfleet   v. 

^  Mitchell  V.  Kirk,  3  Sneed,  319.  Riddick,  3  Dev.  221. 

^  Gleaton  v.  Lewis,  24  Ga.  209.  '  Hawkins  z'.  Johnson,  4  Blackf.  (Ind.) 

■•Edwards  v.   Harben,  2  T.  R.  587  ;  21;  Madison  57.  Shockley,  41  Iowa,  451. 

Alexander  v.  Kelso,  57  Tenn.  5 ;  Wms.  And   see   as   to    a   surviving  husband, 

Exrs.   261;  Allen  v.   Kimball,    15   Me.  Phaelon  27.  Houseal,  2  McCord  Ch.  423. 

1 16  ;[  Norfleet  v.  Riddick,  3  Dev.  L.  221  •'i  ^  Walton  v.  Hall,  66  Vt.  456. 

Tucker  v.  Williams,  Dudley  (S.  C.)  329  ;  '  Brown    v.    Benight,    3    Blackf.    39.^ 

Hopkins   v.   Towns,    4    B.    Mon.    124  ;:  See  also  Outlaw  z'.  Farmer,  71  N.  C.  31.  , 

Simonton  v.  McLane,  25  Ala.  353.   And  "  Morrill  v.  Morrill,  13  Me.  415. 

see  43  Ehz.  c.  8,  cited  Wms.  Exrs.  260.  '  O'Reily  v.   Hendricks,  2  Sm.  &  M. 

Cf.   Barnard  v.   Gregory,   3  Dev.   223.  388;  Garner   v.    Lyles,    35    Miss.    176. 

Fraudulent  transfers  by  the  testate  or  Equity  has  jurisdiction  of  a  bill  by  the 

intestate  are  open  to  attack  in  the  due  creditor  under  such  circumstances.     lb. 

263 


§    18/  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

sion  with  the  intermeddler,  be  chargeable  as  executor  dc  son 
tort,  but  the  intermeddler  shall  be  charged  alone.'  In  modern 
times,  too,  the  innocent  custodian  or  bailee  is  sheltered  by  the 
law ;  thus,  one  who  holds  the  goods  of  a  deceased  person,  under 
some  colorable  claim,  as  that  of  a  lien,  or  by  reason  of  some 
mistake,  has  been  pronounced  no  executor  de  sojt  tort  at  all ;  ^ 
and  where  one  happens  to  be  left  in  charge  of  a  dead  person's 
goods  (as  in  case  the  death  occurred  at  his  house),  he  may  keep 
them  until  he  can  lawfully  discharge  himself,  without  incurring 
the  responsibilities  of  such  an  executorship.^  One  may,  under 
the  circumstances  presented,  become  the  temporary  bailee  of  a 
dead  man's  goods,  to  carry  them  home,  with  powers  and  respon- 
sibilities regulated  accordingly.'* 

One,  moreover,  who  takes  and  may  claim  as  his  or  her  own, 
property  held  by  the  decedent  as  bailee,  does  not  hold  such 
property  as  executor  dc  son  tort} 

§  187.  Executorship  de  son  Tort;  Legal  Consequences.  —  The 
legal  consequence  of  becoming  what  was  styled  an  executor  dc 
son  tort,  was  to  render  one's  self  liable,  not  only  to  an  action  by 
the  rightful  executor  or  administrator,  but  also,  so  as  to  be  sued 
as  executor  by  a  creditor  of  the  deceased,  or  by  a  legatee  ;^  for, 
as  Lord  Cottenham  observes,  an  executor  dc  son  tort  has  all  the 
liabilities,  though  none  of  the  privileges,  that  belong  to  the 
character  of  executor. ^  By  the  intermeddling  of  such  a  party, 
it  was  considered  that  creditors  had  been  aggrieved.     Of  his 

'  Paull   V.    Simpson,    9    Q.    B.   365;         ^Graves  v.  Page,   17  Mo.  91.     One 

Wms.   Exrs.  263 ;  Smith  v.   Porter,  35  who  in  good  faith  sells  as  the  widow's 

Me.  287.     One  who  buys  assets  of  the  agent  perishable  property,  and  accounts 

estate  on  credit  from   an   executor  de  for  the  proceeds,  is  not  liable  to  thead- 

son  tort,  may  defend  by  showing  that  ministrator  afterwards  appointed.     Per- 

he  has  paid  a  part  to  the  legally  ap-  kins  v.  Ladd,  114  Mass.  420. 
pointed    representative   and   given    his         '  Morris    v.    Lowe,    97    Tenn.    243. 

note  to  him  for  the  balance.     Rockwell  Here  a  wife  claimed  as  her  own  what 

V.  Young,  60  Md.  563.  had  been  bailed  to   her  husband  and 

^  Flemings   v.    Jarrat,    i     Esp.    336 ;  paid  debts  of  the  estate  out  of  her  own 

Wms.  Exrs.  263.     And  this  even  though  means.     See  §  193. 
one's  claim  of  Hen  may  not  be  positively         *  Wms.  Exrs.  265  ;  Bac.  Abr.  Execu- 

established.  tors,  B,  3. 

^  Godolph.  pt.   2,  c.  8;   Wms.  Exrs.         '' Carmichael  v.  Carmichael,   i  Phill. 

263.  Ch.  103. 

264 


CHAP.    Vlll.]     OFFICIATING.    WITHOUT  AX   APPOIXTMENT.  §    IcS" 

liability  to  the  rightful  executor  or  administrator  we  shall  speak 
presently ;  this  liability  to  the  creditor  or  legatee  deserving  our 
previous  attention,  as  something  quite  abnormal,  and  exposing 
the  intermeddler  to  penalties  by  no  means  apportioned  to  his 
particular  offence. 

Why  a  person  who  thus  acts  should  be  suable  by  third  parties 
as  an  executor,  is,  so  the  older  text-writers  affirm,  because 
strangers  may  naturally  conclude  from  such  conduct  that  he 
has  a  will  of  the  deceased  which  he  has  not  yet  proved.'  Yet 
such  a  supposition  must,  in  many  cases,  be  purely  imaginary; 
the  party  who  sued  knowing  perfectly  well,  all  the  time,  that 
the  intermeddling  was  wrongful,  or  done  for  some  other  and 
inconsistent  purpose.  Upon  such  a  fiction,  however,  the  plead- 
ings are  conducted.  If  the  person  sued  as  executor  de  son  tort 
should  plead  ne  unques  executor,  and  the  creditor  suing  him 
joined  issue,  the  judgment  on  proof  of  acts  such  as  constitute 
in  law  an  executorship  de  son  tort  would  be  that  the  plaintiff 
recover  the  debt  and  costs,  to  be  levied  out  of  the  assets  of  the 
testator,  if  the  defendant  have  so  much  ;  but  if  not,  then  out  of 
the  defendant's  own  goods.^  And  all  this  heavy  responsibility 
incurred  in  law,  to  creditors,  because  of  giving  away  the  dog  or 
bedstead  of  the  deceased  debtor ;  a  penalty  out  of  all  proportion 
to  the  character  of  the  offence,  and  with  so  little  exercise  of 
real  discrimination,  that  the  gross  intermeddler  might  fare  bet- 
ter than  a  custodian  who  had  thoughtlessly,  and  not  wilfully,  dis- 
posed of  what  was  likely  to  spoil  before  a  lawful  representative 
could  intervene.^     While,  however,  by  sincerely  denying  that 

'  2  Bl.  Com.  507,   508 ;  Wms.  Exrs.  appear,  however,  to  be  wanting.    Wms. 

265.  Exrs.  266. 

^  Wms.  Exrs.  266;  Cro.  Jac.  648.  The  English   principles  of  pleading, 

^  In  Robinson  v.  Bell,  2  Vern.  147,  it  where  one  is  sued  by  creditors  as  execu- 

is  intimated  that  in  cases  of  gross  dis-  tor  de  son  tort,  are  recognized  in  some 

proportion  of  this  levy  to  the  property  American    cases,  —  mostly    early  ones. 

meddled  with,   equity  will    relieve   the  See    Campbell  v.   Booth,   7   Cow.  64 ; 

executor  de    son    tort;  as    where    the  Hubble  z'.  Fogartie,   i    Hill  (S.  C.)  167. 

widow  of  an  ale-house  keeper  is  thus  The  doctrine  is  considerably  upheld  in 

sued  for  debts  of  the  intestate  on  proof  North    Carolina.     Morrison   v.    Smith, 

merely  that  she  had  taken  money  for  a  Busb.   L.  399 ;   Bailey  v.   Miller,   5  Ire. 

few  pots  of  ale  sold  in  the  house  after  444.     See  Riddle  v.  Hill,  51  Ala.  224  ; 

her    husband's    death.     Modern  prece-  Ellis  ?•.  McGee,  63  Miss.  168. 

dents  decidedly  favorable  on  this  point 

265 


§    1 88  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

he  was  an  executor,  the  incautious  intermeddler  might  thus  fall 
upon  the  thorns,  it  was  open  to  him  to  escape  the  worst  by  tak- 
ing the  humor  of  the  fiction,  and  alleging  on  his  own  part  plene 
administravit ;  under  which  plea  he  was  only  chargeable  for 
the  assets  which  had  actually  come  to  his  hands,  and  might 
relieve  himself  by  showing  payments  made  to  other  creditors  of 
equal  or  superior  degree,  so  as  to  have  exhausted  such  assets, 
or  a  delivery  of  assets  to  the  rightful  executor  or  administrator 
before  action  brought.'  And  by  pleading  both  ne  nnq?ics  execu- 
tor and  plcjie  administravit,  absurdly  inconsistent  as  such  pleas 
must  have  been,  the  intermeddler  had  a  double  means  of  escap- 
ing the  perilous  consequences  of  the  creditor's  suit.'' 

§  1 88.  Effect  of  Wrongful  and  Injurious  Dealings,  aside  from 
the  Theory  of  Executorship  de  son  Tort.— Aside  from  all  fictions 
of  an  executorship  de  son  tort,  the  rational  consequence  of  acting 
without  authority  in  an  estate  must  be,  that  the  acts  shall  be 
judicially  treated  with  reference  to  their  injurious  or  beneficial 
character  to  the  estate,  as  also  to  the  situation  and  motives  of 
the  person  whose  conduct  toward  it  is  considered.  The  common- 
law  pleadings,  if  carefully  pursued,  were  not  unfavorable  to  such 
a  discrimination  ;  and  such  a  discrimination  does  a  man  of  sense, 
unread  in  the  law,  draw  when  left,  as  any  one  may  be,  with 
assets  of  a  dead  person  in  his  custody,  which  no  one  else  for 
the  moment  has  any  legal  right  to  demand  of  him.  That  he 
should  be  specially  charged,  and  that  to  the  extent  of  having  to 
respond  to   creditors  as  well  as  to  the  lawful  representative ; 

'  Wms.  Exrs.  267  ;   i  Salk.  313.    But  retained  the  property  for  his  own  debt ; 

payment  made,  after  action  brought,  to  not  even  the  rightful  executor's  or  ad- 

the  rightful  administrator  is  not  a  good  ministrator's    assent   will    give   such   a 

plea  to  the  creditor's  action.     Curtis  z/.  plea  validity.     See    Wms.    Exrs.    269; 

Vernon,  3  T.  R.  587  ;  2  H.  Bl.  18;  Mor-  Cro.  Eliz.  630;  Yelv.   137  ;  Bull.  N.  P. 

rison  z^.  Smith,  Busb.  L.  399.     Yet  it  is  143;  Curtis   v.   Vernon,   2   T.    R.  587. 

held  that  after  action  brought  he  may  The  impolicy  of  allowing  such  a  defence 

apply  the  assets  in  his  hands  to  the  pay-  is  the  reason  given  for  refusing  it  ad- 

ment  of  a  superior  debt,  and  plead  ac-  mission.     Though    it    is   otherwise,    if 

cordingly.     Oxenham  v.  Clapp,  2  B.  &  pendente  lite,  he  procures  letters  from 

Ad.  309.  the  court ;  for  this  appears  to  warrant 

*  Hooper  v.  Summersett,  Wight,  20.  the   inference   that    his    previous    acts 

An  executor  flV  i't'w /^r/ cannot  set  up  in  were  performed   under   color  of  right, 

defence  to  the  creditor's  suit  that  he  See  Wms.  Exrs.  270;  2  Ventr.  180. 

266 


CHAP.   VIII.]    OFFICIATING  WITHOUT  AN   APPOINTMENT.  §    1 89 

that  he  should  be  stigmatized  by  any  such  title  as  executor  dc 
son  tort,  unless  he  had  injuriously  intermeddled;  that  the  test 
should  be,  not  whether  he  has  dealt  with  prudent  regard  to  the 
interests  of  others  under  the  circumstances,  but  whether  he  has 
assumed  official  functions ;  is  not  likely  to  occur  to  him.  And, 
accordingly,  do  we  find  the  legislative  policy  of  modern  times 
tending  to  reject  this  antiquated  theory  of  executorship  de  son 
tort,  and  defining  one's  liability,  under  circumstances  like  these, 
by  rules  more  consonant  to  reason  and  justice.  For,  otherwise, 
it  might  be  said  that  the  common  law  preferred  that  the  person- 
alty of  a  deceased  person  should  go  to  waste  rather  than  let  any 
one  without  regular  authority  take  the  responsibility  of  protect- 
ing it  at  a  critical  moment,  even  though  that  possession  and 
responsibility  had  been  thrust  upon  him  without  his  agency. 
The  acts,  moreover,  of  one  having  the  color  of  a  title  or  a  claim 
to  administration,  and  like  a  widow,  next  of  kin,  legatee,  or 
creditor,  directly  interested  in  preserving  the  estate,  are,  if  so 
performed  that  the  rightful  allowance,  share,  legacy,  or  debt  of 
the  custodian  may  stand  as  indemnity  for  the  transaction,  treated 
with  increasing  indulgence,  in  contrast  with  those  performed 
by  some  stranger  who  officiously  intrudes. 

§  189-  Modern  Statutes  restrict  the  Liability  of  Intruder  to 
Creditors  and  Strangers.  —  Modern  legislation  is  found,  there- 
fore, to  reduce  very  considerably  this  common-law  liability  of 
the  executor  de  son  tort ;  employing  perhaps,  the  old  official 
title  ;  but  making  such  a  person  liable  to  the  actions  of  creditors 
and  others  aggrieved,  if  Hable  to  them  at  all,  only  for  the  prop- 
erty taken  and  to  the  extent  of  the  actual  damage  caused  by  his 
acts ; '  or,  perhaps,  in  some  definite  penal  sum  based  upon  the 
amount  of  the  estate  taken  by  him.^     Creditors  cannot  be  con- 

'  McKenzie   v.    Pendleton,    i    Bush,  intermeddled  with  is  fixed  by  a  New 

164;    Mitchel   V.    Lunt,    4   Mass.    654;  Hampshire  statute.     Bellows  z/.  Goodal, 

Cook  V.  Sanders,  15  Rich.  63  ;  Elder  v.  32  N.  H.  97.     A  party  aggrieved  within 

Littler,  15  Iowa,  65  ;  Hill  w.  Henderson,  this  statute  is  one  who  has  2^  status  in 

13  Sm.  &  M.  688  ;  Stockton  v.  Wilson,  the  courts  as  such  at  the  time  of  bring- 

3   Penn.   St.    130;  Collier  v.   Jones,  86  ing  his  action ;  and,  if  claiming  to  be  a 

Ind.  342.  creditor,  the  defendjint  may  challenge 

^  Double   the  amount    of  the   e.state  his  right  to  be  considered  such  by  set- 

267 


§    IQO  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

sidcrcd  aggrieved,  under  such  statutes,  without  regard  to  the 
legal  priorities  observed  among  them,  in  settling  an  estate ;  nor 
legatees,  apart  from  the  usual  rule  that  the  claims  of  creditors 
take  precedence.'  So  inequitable  in  fact  were  the  tedious  and 
expensive  proceedings  against  intermeddling  at  common  law, 
with  their  partiality  towards  the  creditor  who  invoked  them, 
that  present  legislation  inconsistent  with  that  whole  system 
may  be  fairly  and  not  strictly  construed.^ 

§  190.  Liability  of  Intruder  upon  the  Estate  to  the  Rightful 
Executor  or  Administrator.  —  Modern  inclination,  and  that  par- 
ticularly of  American  States,  tends,  moreover,  to  the  natural 
and  reasonable  doctrine  of  holding  the  intruder  or  officious  in- 
termeddler  liable,  according  to  the  wrongful  character  of  his 
acts,  to  the  rightful  executor  or  administrator  upon  the  estate, 
and  to  him  alone.  Such  a  person  must,  according  to  the  Mass- 
achusetts statute,  for  instance,  respond  to  the  rightful  executor 
or  administrator  for  the  full  value  of  the  goods  or  effects  of  the 
deceased  taken  by  him,  and  for  all  damages  caused  by  his  acts 
to  the  estate  of  the  deceased  ;  and  he  shall  not  be  allowed  to  re- 
tain or  deduct  any  part  of  the  goods  or  effects,  except  for  such 
funeral  expenses,  or  debts  of  the  deceased,  or  charges,  as  the 
rightful  representative  might  have  been  compelled  to  pay.^  A 
]3urchase  from   an  executor  dc  son  tort  confers  no  better  title 

ting  up  the  statute  of  limitations,  etc.  out  by  her,  it  was  held  that  she  could 

Brown  v.  Leavitt,  26  N.  H.  493.     See  not  be  held  liable  to  a  general  creditor 

also   Spaulding  v.   Cook,   48   Vt.    145.  as  executrix  in  her  own  wrong.    Taylor 

And  see  14  Or.  256.     One  may  be  an  v.  Moore,  47  Conn.  278.     AndseeGoff 

executor  de  son  /i?^/ without  becoming  v.    Cook,   73   Ind.   351;    Ferguson  v. 

subject    to    a   statute   penalty  for   the  Barnes,  58  Ind.  169. 

offence  of  intermeddling  without  letters.  ^  103  Mo.  343,  344. 

90  N.  C.  553.  ^  Mass.  Gen.  Stats,  c.  94,  §  15.    And 

■  McConnell   v.    McConnell,    94    III.  see  Hill  v.    Henderson,  13  Sm.  &  M. 

295;  Rozelle  v.  Harmon,  103  Mo.  339.  688;  Barasien  v.  Odum,  17   Ark.   122. 

Where  one  died  leaving  no  property  To  take  a  collectible  note,  and  lose,  by 

but  his  wearing  apparel,  and  his  widow  negligence,  the    opportunity  to  collect, 

paid  out  of  her  own  means  the  expense  may  render  one  chargeable  to  the  legal 

of  his  last  sickness  and  burial,  and  gave  administrator.    Root  v.  Geiger,  97  Mass. 

to  his  brother  a  .suit  of  his  clothes  of  178. 
less  value  than  the  amount  thus  paid 

268 


CHAP.   VIII.]    OFFICIATING  WITHOUT  AN   APPOINTMENT.  §    I90 

than  that  of  the  vendor  ; '  subject  to  the  usual  exceptions  in 
favor  of  the  bona  fide  purchasers  of  negotiable  instruments,  for 
valuable  consideration.^  But  the  executor  dc  son  tort  is  thus 
compelled  to  account  with  only  the  rightful  personal  represent- 
ative ;  and  that,  according  as  he  may  have  wrongfully  and  in- 
juriously intermeddled  with  the  estate,  or  the  reverse.^ 

As  a  general  rule,  any  one  who  assumes  to  dispose  of  per- 
sonal property  belonging  to  the  estate  of  a  deceased  person  may 
be  held  responsible  to  the  rightful  personal  representative,  in 
tort,  as  for  a  conversion  of  the  property,  whether  such  repre- 
sentative receive  his  appointment  before  or  after  the  conver- 
sion.'' If  thus  sued,  one  may  show,  in  mitigation  of  damages, 
payments  made  by  him  such  as  the  lawful  executor  or  adminis- 
trator would  have  been  bound  to  make,  though  nothing  beyond. ^ 
But,  while  the  act  of  the  intruder  is  itself  tortious,  as  in  selling, 
for  instance,  it  may,  nevertheless,  be  advantageous  to  the  exec- 
utor or  administrator  to  waive  the  tort,  and  bring  assumpsit  for 


'  Carpenter  v.  Going,  20  Ala.  587  ; 
Rockwell  V.  Young,  60  Md.  563. 

^  As  to  the  rights  of  a  bona  fide  pur- 
chaser against  all  the  world,  except  the 
legal  representative,  see  Woolfork  v. 
.Sullivan,  23  Ala.  548. 

^  That  some  American  .States  ex- 
pressly repudiate  the  theory  of  executor 
de  son  tort,  while  leaving  those  who  in- 
termeddle liable  to  the  rightful  repre- 
sentative, see  Ansley  v.  Baker,  14  Tex. 
607,  and  other  cases  ciiQd  stipra,  §  184. 

*  Manwell  v.  Briggs,  17  Vt.  176; 
Wms.  Exrs.  270.  And  so,  where  the 
intruder  was  a  wife  whose  husband  is 
liable  for  her  acts  as  at  the  common 
law.     Shaw  v.  Hallihan,  46  Vt.  389. 

5  Tobey  v.  Miller,  54  Me.  480 ;  Rea- 
gan V.  Long,  21  Ind.  264 ;  Saam  v. 
Saam,  4  Watts,  432 ;  Wms.  Exrs.  270, 
271,  and  cases  cited;  Dorsett  v.  Frith, 
25  Ga.  537  ;  Weeks  v.  Gibbs,  g  Mass. 
74 ;  McMeekin  v.  Hynes,  80  Ky.  343. 
Application  of  assets  to  debts  should 
be  in  due  order  of  preference.  Gay  v. 
Lemle,  32  Miss.  309.     Whether,  when 


sued  in  trover,  one  can  show  payment 
of  debts  to  the  value  of  goods  not  sold 
but  still  in  his  custody,  see  Wms.  Exrs. 
270,  &  n. ;  Mountford  v.  Gibson,  4  East, 
447  ;  Woolley  v.  Clark,  5  B.  &  Aid.  744  ; 
Hardy  v.  Thomas,  23  Miss.  544.  Upon 
the  subject  of  recouping  damages,  local 
rules  of  practice  in  corresponding  cases 
must  be  considered,  and  general  works 
Hke  that  of  Sedgwick  on  that  subject. 
For  similar  limitations  under  statute 
provision,  see,  e.g.,  Mass.  Gen.  Stats, 
c.  94,  §  15,  cited  supra.  It  is  to  be  un- 
derstood that  the  right  to  recoup  debts 
paid  is  affected  by  the  solvency  or  in- 
solvency of  the  estate.  Mountford  ?'. 
Gibson,  4  East,  453;  Wms.  Exrs.  271  ; 
Neal  V.  Baker,  2  N.  H.  477.  It  is  re- 
cently held  in  Alabama,  how-ever,  that 
one  who  has  received  and  used  assets 
of  an  intestate  under  circumstances  con- 
stituting him  an  executor  de  son  tort, 
may  show,  when  called  to  account  in 
equity  by  the  rightful  representative, 
that  there  are  no  outstanding  debts, 
and  that  he  has  applied  the  assets  for 


269 


§    192  EXECUTORS    AND    ADMINISTRATORS.  [PART   II. 

the  proceeds ;  which  he  may  accordingly  do ;  and  even  for  the 
tort  the  damages  recoverable  may  be  merely  nominal.' 

The  true  modern  principle  appears  to  be,  therefore,  that  one  who 
intermeddles  with  the  personal  property  of  a  deceased  person, 
and  disposes  of  it  or  does  any  other  act  of  administration  of  the 
assets  without  the  authority  or  direction  of  the  proper  court,  or 
of  the  will  of  the  deceased,  stands  liable  to  the  suit  of  the 
rightful  executor  or  administrator,  for  whatever  he  may  have 
taken  or  disposed  of  unlawfully ;  he  must  account  fully  and  he 
cannot  through  his  wrong  acquire  any  benefit  for  himself.  But, 
on  such  accounting,  he  is  protected  in  all  acts,  not  for  his  bene- 
fit, but  for  that  of  the  estate,  and  in  such  as  were  proper  in  any 
administration.  He  cannot  be  charged  beyond  the  assets  which 
came  to  his  hands,  and  against  these  he  may  set  off  the  just 
debts  which  he  has  paid.^ 

§  191.  Intermeddling  with  Lands  of  the  Deceased.  —  No  inter- 
meddling with  the  lands  of  the  deceased  will  charge  a  person  as 
technical  executor  de  son  tort ;  for  such  interference,  on  general 
principles,  is  a  wrong  done  to  the  heir  or  devisee.^  And  the 
fact,  that  an  executor  de  son  tort  does  not  collect  the  effects  and 
pay  the  debts,  will  not  justify  creditors  in  levying  on  the  real 
estate  of  the  deceased  ;  for  the  lands  of  the  deceased  are  in  no 
sense  assets  in  the  hands  of  an  executor  de  son  tort* 

§  192.  Liability  of  One  who  administers  under  Void  Letters, 
etc.  —  Where  one  takes  out  letters  under  a  void  or  voidable 
grant,  as  executor  or  administrator,  it  is  said,  sometimes,  that 
he  becomes  executor  or  administrator  de  soji  tort>     That  he 


the  use  and  benefit  of  the  distributees,  See   further,    Ross   v.    Newman,    26 

as  they  must  have  been  appUed  in  due  Tex   131  ;  Sellers  v.  Licht,  21  Penn.  St. 

course   of   administration.       Brown   v.  98;  Rockwell  e^.  Young,  60  Md.  563. 

Walker,  58  Ala.  310.  ^  Cases  supra  ;  68  Fed.  605. 

'  Upchurch   v.    Nosworthy,    15    Ala.  ^  Mitchel  f.  Lunt,  4  Mass.  654 ;  King 

705;  52  Penn.  St.  370.     A  bill  inequity  v.  Lyman,  i    Root,   104;   Nass  v.   Van 

by  distributees  against  an  intermeddler  Swearingen,  7  S.  &  R.  196. 

should  make  the  rightful  personal  rep-  *  Parsons,  C.  J.,  in  Mitchell  v.  Lunt, 

resentative    a  party  plaintiff  or  defend-  4  Mass.  654  ;  (Ga.)  5  S.  E.  629. 

ant.     Nease  z/.  Capehart,  8    V\'.  Va.  95.  '  Bradley  z/.  Commonwealth,  31  Penn. 

270 


(HAP.   VIII.]    OFFICIATING  WITHOUT  AN   APPOINTMENT.  §    I93 

shall  be  held  answerable  for  his  official  acts  committed  de  facto, 
to  the  same  extent  as  if  he  had  been  rightfully  appointed,  and 
must  make  good  all  losses  occasioned  through  maladministration, 
purging  himself  of  blame,  and  rendering  due  account,  we  can- 
not doubt ;  but  it  does  not  appear  that  his  statiis  is  that  of  the 
common-law  executor  de  son  tort,  necessarily,  under  circum- 
stances which  impute  to  him  no  intentional  wrong.' 

§  193.  Beneficial  Dealings  w^ith  a  Dead  Person's  Estate  by  One 
not  appointed.  —  Upon  the  ancient  theory  of  intermeddling, 
various  acts,  beneficial  in  their  character,  might  be  performed 
without  exposing  one  to  the  perilous  risk  of  an  executor  de  son 
tort ;  though  the  discrimination  made  was  a  very  cautious  one. 
One  might  order  or  furnish  a  funeral  suitable  to  the  estate  of 
the  deceased,  and  defray  the  cost  out  of  such  estate  or  his  own 
private  means ;  ^  or  supply  the  young  children  of  the  deceased 
with  necessaries ;  or  feed  his  cattle,  or  make  out  an  inventory, 
or  lock  up  the  effects  ;  or  move  the  property  to  some  secure 
place  ;  or  carry  or  send  it  to  his  home  and  to  lawful  representa- 
tives ;  and,  in  general,  take  good  care  of  it,  according  to  the  cir- 
cumstances and  its  situation. ^  All  these  were  said  to  be  "  of- 
fices merely  of  kindness  and  charity,"  •*  or,  one  should  say 
rather,  beneficial  acts  and  offices  of  decency  and  prudence,  com- 
mendable though  performed  from  less  exalted  motives.^ 

Legal  and  proper  acts  done  by  an  executor  de  son  tort,  more- 
over, are  held  good  against  the  true  representative  of  the  estate, 

St.  522.     And  see  Damouth  e/.   Klock,  E,\rs.  262  ;  Godolph.  pt.  2,  c.  8  ;  Harrison 

29  Mich.  290;  49  Ala.  137,  586.  v.  Rowley,  4  Ves.  216;   119  N.  C.  510. 

'  See  supra,  c.  6  ;   Plowd.  82  ;  Wms.  Receiving  a  debt  due  the  estate,  for  the 

Exrs.  272.  A  void  administration  fraud-  alleged  purpose  of  providing  the  funeral, 

ulently  procured  may  render  the  admin-  may  or  may  not  constitute  one  an  exec- 

istrator  and  his  sureties   liable.     Wil-  utor  de  son  tort,  according  as  the  assets 

liams  V.  Kiernan,  25  Hun   (N.  Y.)  355.  so  procured  were  reasonably  small  or 

^  The   ordering   of   the   funeral    and  unreasonably   great    for   that  purpose, 

even  of  the  immediate  place  of  burial  be  Camden  v.   Fletcher,  4   M.  &  W.  378. 

longs  naturally  to  the  surviving  spouse  or  And  see  Taylor  v.  Moore,  47  Conn.  278. 

immediate  family.   167  Mass.  307.  And  ■'Swinb.  pt.  2,  §  23 ;  Wms.  Exrs.  262. 

see  §§  421,  422.  5  "  It  is  clear  that  all  lawful  acts  which 

^  Brown    v.    Sullivan,    22    Ind.    359;  an  executor  t/i?  j-^;? /t^r/"  doth,  are  good." 

Church,  J.,  in  Bacon  7'.  Parker,  12  Conn.  5  Co.  30  b. 
212  ;  Graves  v.  Page,  17  Mo.  91 ;  Wms. 

271 


§  193 


EXECUTORS    AND    ADMINISTRATORS. 


[part  II. 


if  the  latter  would  have  been  bound  to  do  Hkewise  in  the  due 
course  of  administration  ;  and  the  fair  sale  of  goods,  or  payment 
of  money  out  of  the  assets  which  the  executor  dc  son  tort  con- 
trolled, in  order  to  discharge  debts  binding  to  their  full  extent 
upon  the  estate  of  the  deceased,  should  not  be  needlessly  dis- 
turbed by  the  true  representative;'  or,  at  all  events,  where  the 
parties  to  the  transaction  appear  to  have  acted  in  good  faith, 
prudently,  and  honestly.''  Prudence  is  exacted  not  only  from 
administrators  and  executors,  but  from  custodians  and  other 
bailees  ;  and  diligence  to  keep  the  estate  from  loss  is  not  only 
commendable  in  one  who  has  a  temporary  charge,  but  a  matter 
of  duty.' 

Again,  the  circumstance  that  a  widow  is  left  in  possession  of 
some  goods  of  her  deceased  husband  does  not,  as  modern  prac- 
tice inclines,  justify  a  ready  inference  of  executorship  de  son  tort 
on  her  part,  with  its  penal  obligations ;  especially  if  young  chil- 
dren must  be  maintained  by  her  ;  "*  nor  should  the  act  of  any 
other  person  or  public  official,  vested  with  proper  custody  of  a 


■  1  Ld.  Raym.  66i  ;  Plowd.  282.  The 
reason  said  is  (Lord  Holt,  i  Ld.  Raym. 
661)  that  the  creditors  are  not  bound  to 
seek  farther  than  him  who  acts  as  exec- 
utor. 

^  But  see  Mountford  v.  Gibson,  4 
East,  441,  as  to  solitary  acts  of  wrong. 
Payments  made  in  rightful  course  of 
administration,  and  properly  chargeable 
upon  the  estate,  may,  we  have  seen,  be 
set  off  by  the  executor  de  son  tort.  Su- 
pra, §  190.  See  Peters  v.  Leader,  47 
L.  J.  Q.  B.  573- 

^  See  Root  v.  Geiger,  97  Mass.  178; 
Graves  v.  J'age,  17  Mo.  91  ;  Schoul. 
Bailments,  passim. 

*  Chandler  v.  Davidson,  6  Blackf . 
367 ;  McCoy  v.  Paine,  68  Ind.  327 ; 
Crashin  v.  Baker,  8  Mo.  437.  See  Pe- 
ters V.  Leader,  47  L.  J.  Q.  B.  573,  a 
late  English  case,  where  a  widow,  com- 
pelled to  vacate  premises,  who  moved 
some  of  the  furniture  and  sold  the  rest 
at  auction,  was  held  to  be  no  executrix 
lie  son  tort,  she  duly  accounting  to  tlic 

27 


administrator  aftenvards.  Nor  was  the 
auctioneer  so  liable.  lb.  But  for  in- 
jurious intermeddling  the  widow  must 
respond.     66  Vt.  455. 

Under  the  Georgia  code,  if  one 
chargeable  as  executor  de  son  tort  dies, 
his  administrator  as  such  is  chargeable 
to  the  same  extent  as  the  intestate; 
but  by  no  technical  construction  does 
the  latter  become  personally  chargeable 
because  of  his  own  intestate's  wrong- 
Alfriend  v.  Daniel,  48  Ga.  154.  As  to 
the  effect  of  a  widow's  re-marriage,  in 
making  her  husband  an  executor  de  son 
tort,  technical  wrong  is  not  favored. 
Winn  V.  Slaughter,  5  Ileisk.  191. 

But  parties  who  have  assumed  with- 
out authority  to  administer  an  estate, 
and  claim  to  have  administered  fully, 
are  estopped,  when  called  upon,  either 
in  a  probate  court  or  a  court  of  equity, 
for  an  accounting,  from  denying  their 
representative  character,  or  tlu  ir  liabil- 
ity to  account  accordingly.  Damouth 
7'.  Klock,  29  Mich.  290. 
2 


CHAP.   VIII.]     OFFICIATrXn   WITHOUT  AN  APPOINTMENT.  §    I94 

dead  person's  estate,  pending  the  appointment  and  qualification 
of  a  legal  representative.  For  this  is  very  different  from  the 
taking  of  custody  by  an  utter  stranger,  to  the  detriment  of 
kindred  and  others  immediately  concerned." 

But  for  contracts  made  by  a  third  person  with  some  relative 
or  a  stranger  and  not  with  the  personal  representative,  and 
while  there  was  in  fact  no  personal  representative  of  the  estate, 
the  representative  cannot  after  his  appointment  be  held  liable 
against  his  consent.^  In  general,  however,  he  may  ratify  bene- 
ficial dealings  with  the  estate,  and  thus  assume  the  responsibility.^ 

§  1 94.  Acts  done  by  a  Rightful  Executor  before  qualifying.  — 
It  remains  to  consider  the  effect  of  acts  done  by  the  legal  rep- 
resentative before  he  has  been  duly  appointed  and  qualified. 
The  old  law  inclined  to  treat  executors  and  administrators  dif- 
ferently in  this  respect.  Upon  an  executor,  the  various  prelim- 
inary acts  which  pertain  to  preserving  the  personal  estate,  like 
a  prudent  bailee,  and  (as  it  might  happen,  besides)  ordering  the 
funeral  and  meeting  other  emergencies  of  the  situation,  were 
thought  to  devolve  most  fitly ;  for  courts  of  common  law  and 
equity  looked  chiefly  to  the  title  one  derived  from  the  testator's 
own  selection  ;  regarding  probate  and  qualification  in  the  eccle- 
siastical court  as  of  secondary  importance.  All  acts  of  this 
character  performed  by  an  executor  were  confirmed  by  his  sub- 
sequent probate  credentials  ;  credentials  which  English  courts 
have  pronounced  to  be  not  the  foundation  but  only  authenti- 
cated evidence  of  the  executor's  title.^  More  than  this,  an  ex- 
ecutor, by  sole  virtue  of  the  authority  which  his  testator  had 
conferred  upon  him,  might  proceed  at  once  to  do  almost  all  the 
acts  incident  to  his  office,  except  to  sue.^     He  might  seize  and 

'  Taylor  v.  Moore,  47  Conn.  278.    And  '■f^  Co.  38  a ;  Plowd.  281  ;  Wms.  Exrs. 

see  97  Tenn.  243  ;   163  Mass.  202.  293,  629  ;  Woolley  v.  Clark,  5  B.  &  Aid. 

^  Watson,  Re,  19  Q.  B.  D.  234.     Here  745  ;  2  W.  Bl.  692  ;  Whitehead  v.  Tay- 
a  sohcitor  did  work  which  he  consid-  lor,  10  Ad.  &  E.  210. 
ered  for  the  benefit  of  the  estate  and  '  In  order  to  sue,  as  we  shall  see  here- 
tried  to  make  the  administrator  pay  his  after,  letters  of  authority  appropriate  to 
bill  of  costs  afterward.  the  jurisdiction  were  generally  needful. 

^  See  Seaver  v.   Weston,   163   Mass.  See  Di.xon  v.   Ramsay,  3  Cranch,  319. 

202.  Where  an   executor  had  actual  posses- 
18                                                 273 


§    194  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

take  any  of  the  testator's  personalty,  entering  peaceably  for  that 
purpose  into  the  house  of  heir  or  stranger ;  he  might,  as  it  was 
said,  collect,  release,  and  compound  debts  due  the  estate  ; '  he 
might  distrain  for  rent  due  the  testator,  and  enter  upon  his  terms 
for  years  ;  he  might  settle  or  assent  to  the  claims  of  creditors 
and  legatees  upon  the  estate  ;  he  might,  at  discretion,  sell,  give 
away,  assign,  or  otherwise  transfer  and  dispose  of  the  testator's 
goods  and  chattels  ;  and  all  this  before  probate.^  Although 
the  executor  might  die  before  probate  after  doing  any  of  those 
acts,  the  act  itself  stood  firm  and  good ;  and,  by  such  death,  the 
executorship  was  not  avoided  but  only  brought,  so  to  speak,  to 
an  end. 3  If,  however,  what  the  executor  had  thus  done  before 
probate  was  relied  upon  by  another,  as  the  foundation  of  his 
title  or  right,  and  its  enforcement  sought,  —  as  in  the  case  of  a 
transfer  of  certain  assets  belonging  to  the  estate,  —  it  would  be 
necessary  to  show  a  probate  ;  and  hence,  subsequent  letters  to 
this  executor,  or,  if  he  died  without  having  obtained  them,  let- 
ters to  another  with  the  will  annexed,  would  have  to  be  produced.* 
And  so,  correspondingly,  if  enforcement  was  sought  on  behalf 
of  the  estate  against  another,  by  virtue  of  an  arrangement  en- 
tered into  before  probate. ^ 

It  is  generally  admitted  in  this  country,  as  in  England,  ,that 
one's  appointment  as  executor  relates  back  so  as  to  absolve  him 

sion  of  the  personal  property  in  qiies-  suit  may  be  commenced  before  probate, 
tion,  he  might,  on  general  principle,  sue  i    Salk.    307  ;  Wms.    Exrs.   308.     The 
another  who  had  acquired  it  under  a  latest  English  rule  is,  however,  that  all 
contract  with  himself,  or,  as  having  been  proceedings   (e.g.,  a  suit  against  bank- 
wrongfully  dispossessed  by  a  stranger,  ers  of  the  decedent)   should  be  stayed 
sue  for  the  wrong  done  him  in  trespass,  until  probate  is  granted.     Tarn  v.  Com- 
trover,    or   replevin.     For    here    actual  mercial  Bank,  12  Q.  B.  D.  294. 
possession  makes  a /;7W(7y(Z«>  title  suf-  'But   as  to   releasing,    compounding 
ficient  to  serve  as  the  foundation  of  an  debts,  etc.,  see  c.  $,  post.  Part  IV. 
action.     Plowd.  281  ;  Oughton  v.  Sep-  ^  Godolph.  pt.  2,  c.  20;  Rexz/.  Stone, 
pings,    I    B.   &  Ad.   241  ;  Wms.    Exrs.  6  T.  R.  298;   Whitehead  v.  Taylor,  10 
306,  307.     A  bailee's  title  is  enough  for  .\d.  &  E.  210;  Wms.  Exrs.  302,  303. 
many  such  cases.     But  where  the  exec-  ^  i    Salk.  309  ;  Johnson  v.   Warwick, 
utor's  suit  is  on  behalf  of  the  estate,  17  C.  B.  516;  Wms.  Exrs.  303,  304. 
and  in  a    representative    capacity,   the  ■•Johnson  v.  Warwick,  17  C.  B.  516; 
letters  must  be  produced,     i  Salk.  285  ;  Pinney  v.  Pinney,  3  B.  &  C.  335. 
3  Taunt.  113;  Webb  v.  Adkins,  14  C.  B.  '  Newton  v.  Metropolitan  R.,  i  Dr.  & 
401.     Yet  it  is  held  that,  provided  ihe  Sm.  583. 
credentials  be  produced  in  season,  the 

274 


CHAP.   VJII.]    OFFICIATING  WITHOUT  AN  APPOINTMENT.  §    1 94 

from  all  personal  liability  for  acts  committed  before  his  appoint- 
ment without  a  strict  probate  sanction  ;  though  this,  by  fair  in- 
ference, affords  immunity  only  as  to  acts  which  come  properly 
within  the  authority  and  scope  of  a  rightful  representative.' 
American  legislation  departs  so  far,  however,  from  the  older 
theory,  that,  as  we  have  elsewhere  shown,  no  appointment  as 
executor  may  be  safely  deduced  from  the  will  itself,  even  though 
the  rightful  probate  of  that  will  were  unquestioned ;  for,  as 
American  statutes  so  frequently  provide,  the  will  should  be  pre- 
sented speedily  for  probate,  nor  should  an  executor  designated 
therein  act  as  one  having  genuine  authority,  until  he  has  been 
duly  appointed  by  the  court  and  has  qualified  by  giving  bonds. 
Hence,  acts  not  of  themselves  justifiable  in  the  prudent  inter- 
est of  the  estate,  pending  one's  full  appointment,  are  not  likely 
to  be  upheld  as  readily  in  this  country  as  in  England  ;  and,  if 
because  of  his  death  or  the  proper  refusal  of  the  court  to  ap- 
point him,  or  his  failure  to  qualify  as  the  law  directed,  some 
one  else  should  be  appointed  in  his  stead,  his  imprudent  and 
officious  dealings  with  the  estate,  meanwhile,  his  needless  trans- 
fers, and  hasty  promises,  may  involve  him  and  his  own  estate 
in  trouble,  rather  than  bind  the  estate  which  he  assumed  to 
represent. "^ 

'Bellinger   v.    Ford,    21    Barb.    311  ;  personal  estate  of  the  deceased  vests  in 

Brown  v.  Leav-itt,  6  Fost.  493;  Stock-  him  before  probate,  as  a  sort  of  trustee 

ton  V.  Wilson,  3  Penn.  St.  130;  Shirley  forihe  creditors,  legatees,  and  whoever 

V.   Healds,    34    N.    H.   407  ;  Dawes  v.  else  may  be  interested  in  the  estate  un- 

Boylston,  9  Mass.  337;  Johns  j/.  Johns,  der  the  will.     Clapp  v.   Stoughton,  10 

I    McCord,    132;  Wiggin   v.   Swett,    6  Pick.  463;  Shirley  v.  Healds,  34  N.  H. 

Met.  197  ;  55  N.  J.  Eq.  456.  407.     He  is  not  only  sole  trustee  in  this 

^See  next  section  as  furnishing  anal-  sense,  but  the  only  legal  representative 

ogous  cases  under  the  head  of  admin-  of  the  deceased,  and,  as  such,  the  per- 

istration.     But  the    rightful    executor,  son  who  should    cause  the  will  to  be 

though  without  official  authority  in  Con-  proved ;  and  he  is  aggrieved  by  any  de- 

necticut,  may  lawfiilly  receive  into  his  cree  which  divests  him  of  his  title  in  the 

possession  here  assets  if  voluntarily  de-  estate  of  the  deceased,  or  which  disal- 

livered  to  him;  and   may   approve   of  lows,  rejects,  or  refuses  the  probate  of 

payments  in  some  instances.     Selleck  e/.  the  will.     Wiggin  z'.  Swett,  6  Met.  197  ; 

Rusco,  46  Conn.  370.  Shirley  v.  Healds,  34  N.  H.  407  ;   Brown 

As  to  the  executor's  title,  the    true  v.  Gibson,  i  Nott.  &  M.  326.     All  this, 

theory  appears  to  be  (unless  where  the  we  presume,  is  to  be  said  in  strictness 

doctrine  of  relation  applies)    that    the  only  of  an  executor  who  virtually  accepts 

275 


§    195  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

§  195.  Acts  done  by  a  Rightful  Administrator  before  qualify- 
ing.—  An  administrator  may,  by  relation,  ratify  and  make  valid 
all  acts  which  come  within  the  scope  of  a  rightful  administra- 
tor's authority  ; '  and  whatever  dealings,  justifiable  on  this  prin- 
ciple, and  in  tlie  interest  of  the  estate,  he  may  have  had  with  it 
before  his  appointment,  are  cured,  in  modern  practice,  by  the 
grant  of  subsequent  letters. ■"  The  modern  tendency,  in  fact,  is 
to  look  indulgently  upon  previous  acts  and  dealings,  not  posi- 
tively arbitrary  and  wrongful  on  his  part,  for  which  he  can  show 
a  subsequent  appointment  ;  and  thus  is  lessened  the  force  of 
earlier  distinctions  which  availed  more  strongly  in  an  executor's 
favor.  Such  beneficial  acts  as  have  been  seen  not  to  constitute 
one  an  executor  dc  son  tort  are  certainly  protected  by  a  subse- 
quent appointment  as  administrator;  and  even  acts  less  justifi- 
able in  theory,  such  as  selling  or  pledging  sundry  chattels  of  the 
deceased,  have  been  sustained  on  the  ground  that  the  act  was 
beneficial  to  the  estate,^  or  at  least  such  as  others  had  no  reason 
to  complain  of  ; ''  while,  of  course,  for  acts  injurious  to  the  estate, 
previous  to  his  appointment,  one  must  respond.^  The  greater 
leniency  appears  due  where  the  appointee  had  previously  the 
responsibility  of  custodian  of  the  dead  person's  effects,  and  acted 
virtually  in  that  capacity. 

the  trust   under  the  will,  and  proceeds  ^  Moore,    1 26 ;    i    Salk.   295  ;    Wms. 

for  probate,  qualification,  etc.,  consist-  Exrs.  407,  408 ;  Mountford  v.  Gibson, 

entiy  with  that  intention  ;  for,  if  he  re-  4  East,  446  ;  Magner  v.   Ryan,    19  Mo. 

fuses  the  trust,  or  the  will  is  invalid,  or  196;  Rattoon  v.    Overacker,  8    Johns, 

he  fails  to  qualify,  the  title  appears  to  126;  Priest  z'.Watkins,  2  Hill  (N.  Y.)  225. 

be  practically  in  abeyance  as  in  the  case  •'Taylor    ?'.    Moore,   47    Conn.    278. 

of   admini.stration;    and    another  title,  Where  one  before  his  appointment  buys 

such   as  that  of  special    administrator,  hay  to  feed  cattle  belonging  to  the  es- 

must  sometimes    and  for  certain   pur-  tate,  he  may  be  sued  for  the  price,  not- 

poses  intervene.  withstanding    credit  was  given  to   the 

Notice  of  the  dishonor  of  a  note  sent  estate.  "  Credit  to  the  estate  means,  if 
to  an  executor  before  his  (]ualification  it  means  anything,  credit  to  the  admin- 
is  sufficient.  Shoenberger  v.  Savings  istrator,  who,  if  he  makes  a  cash  act  for 
Institution,  28  Penn.  St.  459.  the  benefit  of  the  estate  after  the  inte.':- 

'Alvord   V.    Marsh,    12    Allen,    603;  tate's    death,   may  be    personally  sued 

Outlaw  V.  Farmer,  71  N.  C.  35.  thereon."     Tucker  v.  W'haley,  11    R.  I. 

*  Bellinger   v.   Ford,    21    Barb.    31 1  ;  543.     And  see   Luscoml)  ?•.   Ballard,  5 

F.mery  v.  Berry,  S  Fost.  473  ;  Shillaber  Gray,  403. 

V.  Wyman,  15  Mass.  322;  Globe  Insur-  'Jones  v.  Jone.s,  iiS  N.  C.  440  (as  in 

ance  Co.  v.  Gerisch,  163  111.  625.  cancelling  a  just  debt). 

276 


CHAP.   VIII.]    OFFICIATING   WITHOUT   AN   APPOINTMENT.  §    1 95 

To  an  action  on  a  judgment  obtained  against  an  executor  dc 
son  tort,  the  latter  has  been  permitted  to  show  his  subsequent 
appointment  as  administrator,  and  a  full  settlement  of  the  es- 
tate as  insolvent  ;  '  and  his  promise  before  appointment  to  pay 
a  debt  will  not  prevent  the  bar  of  limitations  to  a  suit  brought 
after  his  appointment  against  him.^  As  a  defendant,  such  an 
administrator,  properly  speaking,  becomes  personally  answer- 
able for  his  transactions,  without  the  scope  of  authority  ;  ^  but 
he  may,  after  his  appointment,  obtain  immunity  on  his  accounts 
for  such  transactions  as  are  proper.'* 

According  to  the  old  law,  it  is  true,  executors  and  adminis- 
trators were  differently  treated.^  For  an  administrator's  title, 
being  founded  in  letters  and  on  a  formal  appointment  by  the 
court,  such  officer  had  no  right  of  action,  it  was  said,  until  he 
had  actually  received  his  credentials.^  This  distinction,  how- 
ever, has  become  of  little  consequence  at  the  present  day,  — 
and  especially  in  the  United  States, -^  for  both  executors  and 
administrators  are  required  by  our  probate  law  to  qualify  before 
the  appointment  can  be  considered  as  of  full  legal  force.  Ap- 
pointment and  qualification,  whether  of  executor  or  adminis- 
trator, cause  one's  letters  of  authority,  when  granted,  to  relate 
back  for  most  practical  purposes,  therefore,  to  the  time  of  the 
death  of  the  testate  or  intestate  whose  estate  is  to  be  settled, 
the  title  meanwhile  being  in  a  sort  of  abeyance. ^  Even  the  old 
text  writers  on  English  ecclesiastical  law  admitted  that,  for  par- 

'  Olmsted  v.   Clark,   30    Conn.    108.  2   W.  Bl.  692 ;  Shirley   v.    Healds,  34 

But  not  semble  to  set  up  his  own  wrong  N.  H.  407  ;  Dawes  v.  Boylston,  9  Mass. 

so  as  to  defeat  the  judgment.     Walker  337;  Johns  v.   Johns,  i    McCord,  132; 

V.  May,  2  Hill  Ch.  22.  Wiggin  v.  Swett,  6  Met.  197.     The  ex- 

^  Hazelden  v.  Whitesides,  2   Strobh.  ecutor  may  accordingly  release  a  debt 

353.     Se&  post,  Pt.  V.  c.  5.  due  to  the  deceased  before  procuring 

'  Wms.  Exrs.  405-407  ;   i  Salk.  295  ;  probate.    9  Co.  39  a.    So  he  may  main- 

5  B.  &  Ad.  188;  Parsons  z/.  Mayesden,  tain   trespass,    trover,    etc.,    for   goods 

I  Freem.  152.  taken  out  of  his  possession  before  pro- 

*  Mountford  v.  Gibson,  4   East,  446  ;  bate  of  the  will.    Com.  Dig.  Exrs.  B,  9  ; 

Wms.  Exrs.  407.     As  to  confirming  a  siipra,  §  194. 

sale  after  appointment,  see  also  Hatch  '■  Woolley  v.  Clark,  5    B.  &  Aid.  745  ; 

V.  Proctor,  102  Mass.  351.  Wms.    Exrs.  630;  5    B.   &   Aid.    204; 

'  Woolley  V.  Clark,  5   B.  &  Aid.  745  ;  Pratt  v.  Swaine,  8  B.  &  C.  285. 

Wms.   Exrs.  629;  9  Co.   38   a,   39  a;  ^  Lawrence  7/.  Wright,  23  Pick.  128; 

Whitehead  z;.  Taylor,  loAd.  &  El.  210 ;  Alvord  v.  Marsh,  12   Allen,  603;  Bab- 

277 


§    195  EXECUTORS    AND    ADMINISTRATORS.  [PART  II. 

ticular  purposes,  letters  of  administration  would  relate  back  of 
the  date  or  grant  to  the  time  when  the  intestate  died.  Thus, 
an  administrator  might  bring  trespass  or  trover  for  goods  of  his 
intestate  taken  before  letters  were  granted  him,  the  necessity 
of  the  case  overriding  the  legal  theory  of  a  dispossession  ; '  so 
might  he  ratify  a  sale  of  effects  of  the  deceased  made  before  his 
appointment,  and  recover  the  price,-  and  in  various  other  in- 
stances take  officially  the  benefit  of  contracts  previously  made 
on  account  of  the  estate.^  Furthermore,  on  the  doctrine  of  re- 
lation, an  administrator  entitled  to  bring  trover  for  a  conversion 
has  been  permitted  to  waive  the  tort  and  recover  as  on  a  con- 
tract. And  there  are  various  instances  of  acts  done  by  an  ad- 
ministrator before  appointment,  such  as  selling  and  contracting 
charges,  which,  being  prudent  and  reasonable  in  the  interest  of 
the  estate,  have  been  held  valid  ;  for,  though  the  act  were  that 
of  an  executor  dc  son  tort,  in  some  such  instances,  yet  letters 
may  relate  back  so  as  to  legalize  even  technically  tortious  acts  ;* 
and  here  we  are  to  observe  that  the  peculiar  liability  of  an  exe- 
cutor de  son  tort  to  creditors,  to  the  rightful  administrator,  or 
to  others  who  may  have  suffered  by  his  wrongful  acts,  is  not 
necessarily  in  question  when  the  transaction  itself  calls  for  en- 
forcement.5  Moreover,  an  executor  might  commence  an  action 
at  law  before  proving  the  will,  getting  his  appointment  com- 
pleted in  season  for  his  declaration,  while  an  administrator  would 
have  to  get  his  appointment  first  ;  and  yet,  in  chancery  suits, 
executors  and  administrators  have  been  treated  on  substantially 
an  equal  footing  in  this  respect.^  Modern  statutes,  to  some  ex- 
tent, regulate  expressly  the  devolution  of  title  to  personal  prop- 
erty where  one  dies  intestate  i^  and  tend  to  put  executors  and 

cock  V.   Booth,   2   Hill,    i8i ;  Wells  v.  Mlatch  v.   Proctor,    102   Mass.   351, 

Miller,  45  111.  382  ;  Goodwin  v.  Milton,  354. 

25  N.  H.  458.  ^Bateman   v.    Margerison,    6    Haic 

'Fosters.   Bates,   12    M.  &   W.  226,  496;  3   P.   Wms.   351;  Wooldridge  t. 

233 ;  Wms.  Exrs.  631.  Bishop,  7  B.  &  C.  406 ;  Wms.  Exrs.  405; 

^  Foster  z/.  Bates,  12  M.  &  W.  226,  233.  Gatfield  z/.    Hanson,    57  How.  (N.   Y.) 

^Wms.  Exrs.  632;   Bodger  v.   Arch,  Pr.  331. 

10  Ex.  333.  '  Thus  the  English  statute  3  &  4  Wm. 

■*  Wm.s.  Exrs.  406,  632  ;  Welchman  v.  IV.  c.   7,  permits  the  administrator  to 

Sturgis,    13    (^).    B.    552;   I    Salk.   295;  claim  for  the  purposes  of  the  act  as  if 

Hatch  V.  Proctor,  102  Mass.  351.  he  had  obtained  the  estate  without  in- 

278 


CHAP.   VIII.]    OFFICIATIXd   WITHOUT  AN   APPOINTMENT.  §    I96 

administrators,  before  the  issuance  of  letters,  upon  a  correspond- 
ing footing  of  authority.' 


§  196.  Whether  a  Suitable  Representative  ■who  has  intermed- 
dled can  be  compelled  to  take  out  Letters.  —  In  English  practice, 
agreeably  to  the  theory  that  an  executor's  title  is  mainly  derived 
from  his  testator,  the  person  designated  as  executor  under  a  will, 
who  performs  an  act  of  administration,  cannot  afterward  refuse 
to  probate  the  will  and  accept  the  office.  He  is  held,  in  other 
words,  an  executor  of  right  rather  than  executor  in  his  own 
wrong.^  This  course  seems  incompatible  with  the  American 
doctrine,  which  refers  the  appointment  rather  to  one's  qualifica- 
tion by  proving  the  will,  furnishing  bonds,  and  satisfying  the 
court  that  he  is  suitable  in  fact  for  the  office ;  from  which  as- 
pect, indeed,  one  who  had  acted  imprudently  and  injuriously  to 


terval  after  the  death  of  the  deceased. 
By  Stat.  22  &  23  Vict.  c.  95,  §  19,  the 
personal  estate  and  effects  of  any  person 
dying  intestate,  shall  from  his  decease 
and  until  the  grant  of  administration 
vest  in  the  judge  of  the  court  of  probate 
to  the  same  extent,  etc.,  as  heretofore 
in  the  ordinary.     See  Wms.  Exrs.  635. 

'  By  2  New  York  Rev.  Stat.  71,  §  16, 
the  executor  is  inhibited  from  transfer- 
ring assets  until  letters  are  issued  to 
him ;  and  the  statute  applies  notwith- 
standing full  powers  of  sale  are  ex- 
pressly conferred  by  the  will.  Humbert 
V.  Wurster,  22  Hun  (N.  Y.)  405. 

A  person  to  whose  order  money  be- 
longing to  an  estate  was  paid,  before  an 
administrator  was  appointed,  is  account- 
able therefor  to  the  administrator  when 
appointed,  although  the  money  or  its 
avails  never  came  to  his  actual  use. 
Clark  V.  Pishon,  31  Me.  503. 

"  By  the  law  of  this  State,"  observes 
the  court  in  Hatch  v.  Proctor,  102  Mass. 
351,  354,  "the  letters  of  administration, 
by  operation  of  law,  make  valid  all  acts 
of  the  administrator  in  settlement  of  the 
estate  from  the  time  of  the  death.  They 
become  by  relation  lawful   acts  of  ad- 


ministration for  which  he  must  account. 
And  this  liability  to  account  involves  a 
validity  in  his  acts  which  is  a  protection 
to  those  who  have  dealt  wath  him." 
And  see  Hoar,  J.,  in  Alvord  v.  Marsh, 
12  Allen,  603.  The  doctrine  of  relation, 
however,  appears  not  here  applicable  so 
as  to  constitute  an  estoppel  as  to  title 
against  the  sound  interests  of  the  estate. 
Cooley,  J.,  in  Gilkey  v.  Hamilton,  22 
Mich.  283,  286,  287,  well  observes  that, 
while  this  doctrine  is  quite  necessary  to 
the  protection  of  the  interests  of  the  es- 
tate, this  necessity  is  the  reason  upon 
which  it  rests,  and  it  is  no  part  of  its 
purpose  to  legalize  lawless  acts  which 
may,  and  generally  would,  work  the  es- 
tate a  prejudice.  "  Certainly,"  he  adds, 
"  there  is  nothing  in  the  fact  that  a  man 
is  appointed  administrator,  who  has  pre- 
viously misconducted  himself,  which  can 
justly  raise  against  the  estate  any 
equities,  or  which  can  justly  deprive  the 
creditors  or  next  of  kin  of  any  of  their 
rights  in  its  assets."  And  see  Morgan 
V.  Thomas,  8  Ex.  308  ;  Crump  v.  Wil- 
liams, 56  Ga.  590. 

'  Perry,  Goods  of,  2  Curt.  655  ;   \Vn13. 
Exrs.  276. 

79 


§    197  EXECUTORS    AND    ADMINISTRATORS.  [PAKT   11. 

the  estate,  before  receiving  letters,  might  be  deemed  most  un- 
suitable. Neither  in  English  nor  American  practice  will  a 
widow,  next  of  kin,  or  other  person  lawfully  entitled  to  take  out 
letters  of  administration,  be  compelled  to  do  so  because  of  having 
previously  intermeddled  ;  but  some  one  else  may  receive  the  ap- 
pointment.' 

On  the  other  hand,  save  so  far  as  injurious  intermeddling 
may  bear  upon  the  issue  of  personal  suitableness  for  the  trust, 
it  appears  to  be  no  objection  to  the  appointment  and  qualifica- 
tion of  a  person  as  executor  or  administrator  who  claims  the  ap- 
pointment of  right,  that  he  is  an  executor  de  son  tort  of  the 
estate.^ 

§  197-  Intermeddling  by  a  Third  Person  after  the  Grant  of  Let- 
ters Testamentary  or  Administration.  —  After  probate  of  the  will, 
and  the  grant  of  letters  testamentary,  or,  as  the  case  may  be, 
after  an  administrator  has  been  duly  appointed  and  qualified, 
there  is  a  person  legally  authorized  to  take  full  possession  of  the 
dead  person's  personal  property.  Whoever  shall  afterwards  in- 
juriously intermeddle  with  the  estate  renders  himself  liable  to 
suit  as  a  trespasser.^  Such  intermeddler  is  not  by  technical 
construction  an  executor  de  son  tort ;  but  if  his  interference  be 
actually  under  claim  of  an  office,  he  might  be  thus  charged ; 
since,  according  to  the  better  opinion,  it  seems  not  logically  ab- 
surd that  there  should  exist  an  executor  of  right  and  an  execu- 
tor de  son  tort  at  the  same  time."*  One  upon  whom  the  char- 
acter of  executor  de  son  tort  fastens,  may  be  sued  as  such, 
notwithstanding  the  legal  representative  qualified  afterwards  and 
before  action  was  brought. 5 

§  I97«.  Debtor's  Payment  to  Sole  Distributee,  etc. —  A  court, 
it  is  said,  is  not  bound  at  all  times  to  enforce  a  strict  legal  right, 
but  should  always  look  to  and  protect  an  equitable  title  or  right, 

'  Ackerley  z/.  Oldham,  i  Phillim.  248  ;         ^  Salk.  313  ;  Wms.  Exrs.  261. 
Wms.  Exrs.  438.  ■<  Wms.    Exrs.   261,   and   note,    com- 

^  Carnochan    v.    Abrahams,    T.     P.     menting  on  Peake,  N.  P.  C.  87,  and  i 
Charlt.  (Ga.)    196;    Bingham  v.   Cren-     Turn.  &  R.  438,  which  bear  ^wz/ra. 
shaw,  34  Ala.  683.  ^  j  galk.  313  ;  Wms.  Exrs.  261. 

280 


CHAP.   VIII.]     OFFICI.\TIN"r,   WITHOUT   AX  APPOINTMENT.  §    1 97'' 

where  good  conscience  requires  it.  Hence  the  bona  fide  pay- 
ment to  the  sole  distributee  of  an  ample  estate  by  a  debtor  of 
the  decedent,  before  administration  is  granted,  should  operate 
to  discharge  him  from  liability  to  the  administrator.' 

'  Vail    7'.    Anderson,   6i    Minn.   552,     collected,   as   against    a    representative 
555,  and  cases  cited.     So,  too,  should     later    appointed,    where   there    are   no 
the  sole  distributee  be  protected  in  pos-     debts.     lb.     And  see  §  120. 
session  of  what  he  may  bona  fide  have 

281 


PART  III. 

ASSETS  AND  THE  INVENTORY. 


CHAPTER  I. 

ASSETS    OF    AN    ESTATE. 


§  198.  What  comprise  Assets  of  a  Deceased  Person's  Estate; 
Personal  contrasted  -with  Real  Assets.  —  The  word  "assets," 
which  may  be  used  in  various  primary  senses,  as  its  French 
derivation  indicates,  our  Enghsh  and  American  law  usually  applies 
to  such  property  belonging  to  the  estate  of  a  deceased  person  as 
may  rightfully  be  charged  with  the  obligations  which  his  execu- 
tor or  administrator  is  bound  to  discharge.' 

In  modern  practice,  and  conformably  to  our  modern  legisla- 
tion, all  the  property  of  a  deceased  person,  real,  personal,  or 
mixed,  is  liable  for  his  debts  and  the  usual  charges  incidental 
to  death  and  the  settlement  of  his  estate.  But  a  fundamental 
distinction  has  always  been  recognized  between  the  real  and 
personal  estate,  in  the  application  of  this  rule  ;  for  the  personal 
estate  left  by  the  deceased  constitutes  the  primary  fund  for  all 
purposes  of  administration  ;  his  real  estate  as  a  secondary  fund 
not  being  available  for  assets  until  the  personalty  has  been  ex- 
hausted, leaving  obligations  still  undischarged  ;  nor  available  at 
all  without  proceedings  which  courts  of  equity  pursue  with  strict 
care  and  even  reluctantly.  Personalty  vests  immediately  in  the 
executor  or  administrator  for  the  purposes  of  his  trust ;  but  real 
estate  (subject  to  such  personal  exceptions  as  a  will  may  have 

'  The  word  "  assets,"  from  the  French  The  older  writers  sometimes  applied  to 

assez,   is  here  used  to  denote  property  this  portion  of  the  estate  the  term  "as- 

" sufficient"    to  make  a  representative  sets  enter  mains"  in  contradistinction 

chargeable   tec  creditors    and  legatees,  to  "  assets  per  descent,"  by  which  latter 

or  parties  in  distribution,  so  far  as  that  e.xpression  was  designated  that  portion 

property    extends.     Wms.   Exrs.    1655-  which  descends  to  the  heir.     lb. 

282 


CHAP.   1.]  ASSETS    OF    AN    ESTATE.  §   200 

created)  to  the  heir  or  devisee ;  only  to  be  divested  afterwards 
under  circumstances  of  necessity,  as  regards  legal  obligations, 
and  when  the  personal  assets  prove  insufficient  for  a  due  settle- 
ment of  the  liabilities  of  the  estate. 

§  199.  Personal  Property  of  the  Decedent  vests  in  the  Execu- 
tor or  Administrator.  —  In  pursuing  his  first  and  important  duty 
of  gathering,  as  into  a  heap,  under  his  own  control,  for  the  pur- 
poses of  administration,  the  property  which  the  deceased  may 
have  left  behind,  an  executor  or  administrator  seeks  rightfully, 
therefore,  simply  the  personal  property.  Goods  and  chattels  of 
the  deceased  person  are  to  be  traced  out  and  brought  into  this 
trust  officer's  immediate  possession  and  control ;  for  these  are 
the  assets  which  concern  him  ;  and  title  to  such  assets  or  to  the 
personal  property  of  the  deceased  vests  in  the  executor  or  ad- 
ministrator, if  not  prior  to  his  probate  qualification,  at  least  back 
by  relation  after  he  has  qualified  to  the  instant  of  the  death  of 
his  testate  or  intestate." 

§  200.  Enumeration  of  Personal  Assets ;  Choses  in  Action  as 
well  aa  Choses  in  Possession.  —  Incorporeal  property  or  money 
rights,  as  well  as  corporeal  personal  property, —  bonds,  notes, 
book  accounts,  bank  deposits,  debts  and  balances  due  the  de- 
ceased, as  well  as  his  cash,  household  furniture,  ornaments, 
cattle,  vessels,  and  sole  stock-in-trade,  —  all  these  vest  in  the 
executor  or  administrator,  therefore,  as  assets  for  administration 
purposes.^  Legacies  and  distributive  shares  vested  in  one  per- 
son by  another's  death,  and  without  restriction,  go,  on  his  death 
before  receiving  the  same,  to  his  own  personal  representative 
as  assets.3 


'Rockwell    V.    Saunders,     19    Barb.  Perkins's  notes.     The  property  must,  of 

i\jT,;  supra,  §    195  ;  Wells  v.  Miller,  45  course,  be  that  of  the  decedent.     See 

111.    382 ;    Touchst.    496 ;    Wms.    Exrs.  70  Vt.  458. 

1656;  Snodgrass   %'.  Cabiness,  15  Ala.  ^  Wms.  Exrs.  703  et  seq.,  1656;  Slo- 

i6o.  cum  V.  Sanford,   2  Conn.  533;  Bullock 

What  is  personal  property,  as  con-  v.  Rogers,  16  Vt.  294;  Kohler?/.  Knapp, 

trasted  with   real,  the  reader  will  find  i  Bradf.  (N.  Y.)  241. 

discussed  at  length   in    i    Schoul.  Pers.  '  Storer  z/.  Blake,  31  Me.  2S9 ;   Pease 

Prop.  25-160;  Wms.  Exrs.  650-770,  and  v.  Walker,  20  Wis.  573  ;  144  N.  V.  557. 

283 


§   200  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

Savings  and  accumulations  out  of  the  general  personal  estate 
become  assets  as  well  as  the  original  estate  itself.'  Principal 
and  interest,  capital  and  the  income  and  profits  thereof,  vest  in 
the  personal  representative,  upon  whom,  subject  to  rules  of  ap- 
portionment upon  decease  and  specific  dispositions  under  a  will, 
devolves  usually  the  right  and  duty  of  collecting  and  accounting 
for  the  interest  and  income,  for  the  benefit  of  the  estate  and 
those  interested  in  it,  whether  it  accrue  before  or  after  the  de- 
cease of  the  person,  in  the  course  of  a  prudent  management  of 
his  trust.-  So,  too,  goods  which  have  accrued  by  increase,  and 
the  offspring  or  produce  of  animals  belonging  to  the  deceased. ^ 
Likewise,  the  profits  of  a  trade  or  business,  carried  on  under  or 
independently  of  a  testator's  directions,  go  to  swell  the  assets 
of  the  estate ;  and  profits  made  by  speculations  with  the  assets, 
which  the  executor  or  administrator  had  no  right  to  engage  in, 
or  rightfully  with  funds  left  as  invested  by  the  deceased,  and 
not  yet  recalled,  belong  legitimately  to  the  estate,  for  the  bene- 
fit of  those  interested  therein.  It  is  seen,  therefore,  that  assets 
are  not  necessarily  restricted  to  personalty  which  the  deceased 
owned  in  his  lifetime,  but  embrace,  usually,  the  proper  and  just 
earnings  and  accretions  of  those  assets,  as  they  vest  in  the  course 
of  administration.-* 

Rights  under  a  contract  must  be  treated  as  personalty,  and 
hence  as  vesting  a  title  for  assets  in  the  executor  or  administra- 
tor of  the  estate.5  So  with  a  claim  for  services  rendered  by 
the  decedent  during  his  lifetime,  or  for  wages  due.^  Or  the 
fees  or  salary  of  an  employee  or  public  ofificer.^  Or  one's  patent 
rights  and  copyrights,  subject  to  the  terms  of  the  statute  relat- 

'  Wingate  v.  Pool,  25  111.  1 18.  mere  right  to  preempt  land  goes  to  the 

^  See  Sweigart  v.    Berk,  8  S.  &   R.  executor  or  administrator.     Bowers  v. 

299;    Ray  V.   Doughty,  4  Blackf.    115;  Keesecker,  14  Iowa,  301  ;  2  Wash.  58. 

Wingate  z/.  Pool,  25  111.  118.  But  not   a  squatter's  right   to   occupy. 

3  Wms.  Exr.s.    1657 ;  e.f;.,  the  lambs  99  Ga.  250. 

txtrn  and  the  wool  shorn  of  a  flock  of  ^  Lappin  v.  Mumford,  14  Kan.  9. 

sheep.      Merchant,    Re,    39  N.    J.   Eq.  ^  Steger  v.  Frizzel,  2  Tenn.  Ch.  369. 

506.  Salary  voted  by  a  company  to  a  person 

*  Wms.  Exrs.  1658;  Gibblett  v.  Read,  after  his  decease,  and  paid  to  his  exec- 

9  Mod.  459.  utor,  constitutes  assets  in  the  executor's 

'  Stewart  z/.  Chadwick,  8  Iowa,  463  ;  hands.     Loring  z/.  Cunningham,  9  Cush. 

Pollock,   Re,  3    Redf.  (N.  Y.)   100.     A  87. 

284 


CHAP.  I.] 


ASSETS  OF  AN  ESTATE. 


§  200 


ing  thereto."  So  with  money  receivable  from  the  government 
in  adjustment  of  a  claim  (unless  the  title,  in  case  of  a  claimant's 
death,  goes  otherwise,  according  to  the  statute),  such  as  indem- 
nity money  given  by  a  foreign  treaty  ;  -  distinguishing  here  usu- 
ally between  what  government  may  allow  in  satisfaction  of 
something  due  the  decedent  and  a  mere  bounty  or  gratuity  to 
living  kindred. 3  Whatever  chattel  right  one  has  with  another, 
not  subject  to  the  harsh  rule  of  survivorship,  is  thus  included.'* 
So  is  a  deceased  partner's  interest  in  the  partnership  firm  of 
which  he  died  a  member  ;  5  and  in  computing  such  interest,  the 
good  will  of  the  business  is  proper  to  be  considered.^  So  is  a 
share  in  a  newspaper  business  ^  or  in  valuable  recipes.''  Dam- 
ages assessed  in  favor  of  the  deceased  during  his  lifetime  consti- 
tute assets  ;  ^  also  the  right  to  bring  a  suit  for  damages  suffered 
by  the  decedent,  in  respect  of  person  or  property  ; '"  and,  in  gen- 
eral, claims,  demands,  and  causes  of  action  of  every  kind,  which 
survive  by  common  law  or  statute,  so  that  the  personal  repre- 


*  I  Schoul.  Pers.  Prop.  §§518,  535. 
^  Foster  v.   Fifield,  20  Pick.  67  ;  49 

La.  Ann.  1096;  Thurston  v.  Doane,  47 
Me.  79.  Cf.  Eastland  v.  Lester,  15 
Tex.  98 ;  Grant  v.  Bodwell,  78  Me.  460. 
^  Grant  v.  Bodwell,  ib. ;  Leonard  v. 
Nye,  125  Mass.  455  ;  Phelps  v.  McDon- 
ald, 99  U.  S.  298. 

*  Wms.  Exrs.  652.  See  as  to  joint 
and  common  ownership  of  chattels,  i 
Schoul.  Pers.  Prop.  §§  154-167  ;  Harris 
Ferguson,  16  Sim.  308. 

*  Wms.  Exrs.  651,  652  ;  Buckley  v. 
Barber,  6  Ex.  164;  Moses  v.  Moses,  50 
Ga.  9;  Piatt  V.  Piatt,  42  Conn.  330; 
Pitt  V.  Pitt,  2  Cas.  temp.  Lee,  508 ; 
Schenkl  z'.  Dana,  118  Mass.  236.  And 
see  Hutchinson  v.  Reed,  i  Hoffm. 
(N.  Y.)  316.  The  usual  rule  is,  that  on 
the  decease  of  a  partner  the  partner- 
ship must  be  wound  up  and  accounts 
settled  between  the  surviving  partner 
and  the  representative  of  the  deceased 

285 


member.     See  Colly.   Partn.   §   199;  i 
Schoul.  Pers.  Prop.  §  194 ;  §  325. 

*  Piatt  V.  Piatt,  42  Conn.  330.  Here 
the  business  was  continued  after  such 
partner's  death.  And  see  Wms.  Exrs. 
1659.  A  subscription-book  or  list  con- 
taining the  names  and  addresses  of 
correspondents  may  constitute  the  good 
will  of  a  particular  business  and  valua- 
ble assets  of  the  estate.  Thompson  v. 
Winnebago  Co.,  48  Iowa,  155.  But  see 
Seighman  v.  Marshall,  17  Md.  550.  An 
executor  cannot  appropriate  to  himself 
the  good  will  of  decedent's  liquor  li- 
cense.    Buck's  Estate,  185  Penn.  St.  57. 

''  Gibblett  v.  Read,  9  Mod.  459. 

*  Ib. ;  Wms.  Exrs.  1659. 
9  Astor  7'.  Hoyt,  5  Wend.  603  ;  Welles 

V.  Cowles,  4  Conn.  182. 

'°  As  to  this  point,  and  for  distinctions 
in  respect  of  real  and  personal  property, 
see  Part  IV.,  as  to  survival  of  actions, 
collection  of  assets,  etc. 


§   20I  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

sentative  may    sue  upon    them,   together  with  the  incidental 
recompense  or  indemnity  which  may  attend  the  suit.' 

Personal  annuities,  or  annual  payments  of  money  not  charged 
on  real  estate,  constitute  personal  property,  and  the  right  to 
claim  arrears  goes  to  one's  executor  or  administrator,  subject  to 
the  old  rule  against  apportionment,  so  far  as  that  rule  may  ap- 
ply.^ A  "  rent-charge,"  that  is,  a  burden  imposed  upon  and 
issuing  out  of  lands,  should,  however,  be  distinguished  from  a 
personal  annuity.^ 

§  20 1 .  Enumeration  of  Personal  Assets  continued  ;  Contingent 
and  Executory  Interests,  etc.  —  Not  absolute  interests  alone  in 
personal  property  pass  to  the  executor  or  administrator  as  assets, 
but  contingent  interests  likewise,  provided  the  interest  be  valu- 
able at  all  to  the  estate."*  For  cJioses  in  action,  and  incorporeal 
rights  of  every  kind  upon  which  a  value  may  be  placed,  are  to 
be  classed  among  assets.  In  short,  contingent  and  executory 
interests,  though  they  do  not  vest  in  possession,  may  vest  in 
right  so  as  to  be  transmissible  to  executors  or  administrators. 
But  if  the  contingency  upon  which  the  interest  depended  was 
the  endurance  of  the  life  of  the  party  until  a  particular  period, 
whereas  his  death  occurred  in  fact  sooner,  there  would  occur  a 

'  Money    recovered   upon  an  appeal  to  descend  to  the  heir  to  the  exclusion 

bond  given  to  executors  as  an  appeal  of  a  personal  representative.     Turner  v. 

from  a  judgment  obtained  by  them  in  Turner,  Ambl.  782.     But  this  appears 

that  character  constitutes  assets.    Sass-  to  be  out  of  respect  simply  to  the  ex- 

cer  V.  Walker,  5  Gill  &  J.  102.  A  claim  press  terms  of  its  creation.     Like  a  life 

against   a  former  representative  is  an  insurance  policy,  an  annuity,  when  given 

asset.    Nesmith,  Re,  (N.  Y.  1888).    The  without  words  of  restriction,  passes  to 

fact  that  a  bona  fide  claim  when  sued  the  personal  representative  for  the  ben- 

upon  results  unfavorably  does  not  im-  efit    of   the    estate.     Lord    Hardwicke 

pair  the  right  to  consider  such  claim  as  once  observed  that  it  was  a  personal 

assets.      Robinson  v.   Epping,   24  Fla.  inheritance  which  the  law  suffered  to  de- 

237.     A  government  claim  may  consti-  scend  to  the  heir.     Stafford  v.  Buckley, 

tute  assets.     171  U.  S.  466.     Cf.  §  211.  2  Ves.  Sen.  170.     And  see  Wms.  Exrs. 

^i   Schoul.  Pers.    Prop.  §373;    Co.  809,810. 
Lit.  2  a;  Wms.  Pers.  Prop.  5th  Eng.  ed.         *  Wms.  Exrs.  653,  887  ;  Peck  v.  Par- 

180-182.  rot,  I   Ves.   Sen.  236;   Fyson  v.  Cham- 

^  2  Bl.  Com.  40,  41.     It  was  formerly  bers,  9  M.  &  W.  460;  Clapp  v.  Stough- 

questionedwhetherannuities  were  realty  ton,  10  Pick.  268;  Ladd  v.  Wiggin.s,  35 

or  personalty;  for,  when  granted  with  N.  H.  421  ;  Johns  w.  Johns,   i  McCord, 

words  of  inheritance,  an  annuity  is  held  132  ;  Dunn  v.  Sargent,  loi  Mass.  336. 

286 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  202 

lapse  or  extinguishment  of  the  interest,  and  nothing  transmissi- 
ble to  his  personal  representative  remaining,' 

If  a  debt  is  due  optionally  to  decedent,  and  the  latter,  though 
never  demanding  it  while  he  lived,  never  released  nor  extinguished 
it,  nor  abandoned  his  option,  it  should  be  considered  assets  of 
the  estate.  ^ 

§  202.  Enumeration  of  Personal  Assets  continued  ;  Stock ; 
Public    and    Corporation    Securities ;     Life    Insurance    Policies.  — 

Stock  is  in  modern  times  usually  treated  as  personal  property, 
notwithstanding  the  corporation,  a  railway  or  turnpike  company, 
for  instance,  derive  its  profits  in  a  certain  sense  from  the  use  of 
real  estate.'  Dividends  declared  by  a  stock  company  during 
the  decedent's  life,  and  not  collected,  belong  to  his  estate  as 
personal  assets,  as  does  also  the  stock ;  *  while,  in  respect  of 
dividends  declared  and  payable  after  his  death,  the  executor  or 
administrator  usually  collects  for  the  purposes  of  his  trust,  ac- 
counting in  a  proper  manner,  as  the  directions  of  the  testator  and 
the  general  law  of  administration  may  require.  Stock  in  the 
public  funds,  and  government  and  municipal  bonds  and  secur- 
ities of  all  kinds,  are  likewise  treated  as  personal  property  at  the 
present  day.'  And  all  these,  being  personal  property  of  the  in- 
corporeal sort,  are  transmitted  as  personal  and  primary  assets 
to  the  executor  or  administrator  upon  the  owner's  decease.  But 
under  a  mere  contract  to  deliver  stock,  it  is  the  right  of  action 
under  the  contract  that  constitutes  assets.^ 

If  in  a  life  policy  the  assured  himself  is  named  the  beneficiary, 
the  money  accruing  at  his  death  belongs  as  assets  to  his  estate,^ 

'  Wms.  Exrs.  889.  considered  personal  property.    See  Dry- 

'  Colgan's  Estate,  160  Penn.  St.  140.  butter  v.  Bartholomew,  2  P.  Wms.  127 ; 

3  See  I  Schoul.  Pers.  Prop.  §§  480-482;  Wms.  E.xrs.  811. 

Bligh  V.  Brent,  2  Y.  &  C.  268;  Weyer  *  Welles  v.  Cowles,  4  Conn.  182. 

V.    Second   Nat.    Bank,    57    Ind.    198.  -  Vvms.    Exrs.    812,    813;   i    Schoiil. 

Canal  shares,  etc.,  were  considered  real  Pers.  Prop.  §§  478,  479. 

property,  but  this  rule  has  long  since  ^  Hitchcock  v.  Mosher,  106  Mo.  578. 

changed.     To    remove   all    doubt,    the  ^  Union  Mut.  Life  Ins.  Co.?'.  Stevens, 

legislature,  in  acts  of  incorporation,  fre-  19  Fed.  R.  671 ;  Hathaway  v.  Sherman, 

quently  declares  that  the  stock  shall  be  61  Me.  466 ;  Butson,  /^e,  9  L.  R.  Ir.  21. 

287 


§    204  EXECUTORS    AND    ADMINISTRATORS.  [PART   III. 

though  not  where  the  policy  is  expressed  for    the  benefit  of 
some  other." 

§  203.  Enumeration  of  Personal  Assets  continued ;  Personal 
Property  taken  or  given  in  Security.  —  Debts  owing  the  deceased 
upon  chattel  security,  such  as  pledge,  mortgage,  and  lien  to  the 
testate  or  intestate,  give  the  benefit  of  the  security  to  the  estate ; 
and  the  security  must  not  be  left  out  of  consideration  in  the 
assets.  But  bonds  executed  to  an  administrator  or  executor 
in  his  fiduciary  character,  in  consideration  of  assets  transferred 
by  him,  are  not  necessarily  assets  for  the  benefit  of  the  estate.- 
Security,  in  general,  enures  for  the  direct  benefit  of  that  upon 
which  the  security  was  placed  ;  and  hence  a  bond  of  indemnity, 
or  a  judgment  recovered  thereon  by  the  deceased  during  his 
lifetime,  vests  only  as  assets  for  the  purpose  of  applying  it  to 
the  satisfaction  of  the  debt  or  demand  against  which  the  in- 
demnity was  afforded.^  Whatever  a  debtor  may  give  the  execu- 
tor or  administrator,  to  secure  or  discharge  what  he  owes,  belongs 
to  the  estate.'' 

Debts,  on  the  other  hand,  owing  from  the  deceased,  and 
secured  by  pledge  or  mortgage  of  his  personal  property,  or  a 
lien  thereon,  leaves  the  surplus  as  general  assets  of  the  estate 
beyond  such  sum  as  may  be  required  for  discharging  the  security ; 
or,  as  one  might  say,  the  personal  property  given  in  security 
constitutes  assets,  subject  to  the  preferential  claim  of  the  secured 
creditor.^ 

§  204.  To  constitute  Personal  Assets,  the  Title  must  have  stood 
in  the  Decedent  at  his  Death.  —  The  deceased  must  have  ownetl 
such  personal  property  or  been  the  creditor  or  claimant  at  the 
time  of  his  death,  since  otherwise  the  title  cannot  devolve  upon 

■  See  §  211.     As  to  construction  of  '•  See  32   Hun,  599;   Sain  v.    Bailey, 

w-ill,  see    Golder  v.   Chandler,    87    Me.  90  N.  C.  566. 

63  ;  §  300.  ^  I  Leon.  155,  225  ;  Wms.  Exrs.  1660; 

*  Saffran  v.  Kennedy,  7  J.  J.  Marsh.  Vincent  v.  Sharpe,   2  Stark.  N.  P.  507; 

187.  Haynsworth  v.  Frierson,  1 1  Rich.  (S.  C.) 

^  MoUoy  V.  Elam,  Meigs  (Tenn.)  590.  476.     See  as  to  widow's  allowance  out 

of  pledged  property,  96  Ga.  625  ;  §  451- 

288 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  2O4 

his  legal  representative  ;  and  the  decedent's  title,  when  he  died, 
is  the  criterion  of  the  title  which  devolves  upon  his  personal 
representative.  Thus,  notes,  securities,  or  other  incorporeal 
property  bona  fide  and  regularly  transferred  to  others  by  the 
decedent  during  his  lifetime,  and  indorsed,  assigned,  or  delivered, 
with  mutual  intention  that  the  title  should  so  pass,  do  not  vest 
in  the  representative  of  the  deceased ; '  and  the  same  may  be 
said  of  corporeal  goods  and  chattels,  duly  delivered  upon  a  like 
understanding,  by  the  decedent.^  If,  however,  the  transfer  was 
voluntary  and  fraudulent  against  one's  creditors,  remedies  are 
open  and  should  be  pursued,  as  we  shall  see,  for  assailing  such 
stranger's  title.-*  And  since  legal  transfer  implies  parting  v^ith 
dominion  over  the  thing,  any  professed  transfer  during  one's 
life  which  left  the  possession,  control,  and  power  to  revoke  in 
the  transferrer,  keeps  his  title  virtually  undivested,  so  that  at 
his  decease  the  chattel  must  be  administered  as  assets."*  Nor 
does  a  bailment,  made  under  instructions  which  death  counter- 
mands, divest  the  donor's  title. 5 

Where,  on  the  other  hand,  personal  property  attached  by  the 
trustee  process  was  assigned  by  the  owner  subject  to  the  attach- 
ment, and  such  attachment  was  dissolved  by  the  owner's  death, 
it  was  held  that  the  property  passed  by  the  assignment  and  did 
not  constitute  assets  available  for  administration.^  Advance- 
ments made  during  life  to  children  are  regarded  essentially  as 
gifts  ;  so  that  these  are  not  to  be  reckoned  among  assets  of  the 
estate. 7     A  savings  bank  deposit  belonging  to  a  donee  is  not 


'  Wms.  Exrs.  1675;   '  Salk.  79.  '  See.§  2()j,post. 

^Thomas  v.   Smith,   3    Whart.  401;  ■»  Cummings  v.  Bramhall,   120  Mass. 

Garner  z/.  Graves,  54  Ind.  188;  Burke  552;  Madison    v.    Shockley,    41    Iowa, 

V.  Bishop,  27  La.  Ann.  465.     As  to  the  451. 

general   subject   of   assignment,    see    i  '  Bigelow  v.  Paton,  4  Mich.  170.     A 

Schoul.  Pers.  Prop.  §§  73-83.     The  old  promissory  note  should  be  charged  as 

doctrine  of  the  law  was  that  a  c/tose  in  assets,  notwithstanding  oral  expressions 

action    could    not    be    assigned.      But  used  by  the  deceased  to  his  executor 

equity  has  so  encroached  upon  the  law  insufficient  to  constitute  a  release.  Byrn 

that  every  species  of  incorporeal  prop-  v.  Godfrey,  4  Ves.  6. 

erty,   with    a   few    nominal  exceptions,  *  Coverdale  v.  Aldrich,   19  Pick.  391. 

may  now  ha  practically  assigned  so  as  '  See  post  as  to  advancements ;  Wms. 

to  pass  the  title,     i  Schoul.  Pers.  Prop.  Exrs.  1498,  1502. 
§§  73-83. 

19  289 


§   205  EXECUTORS    AND    ADMINISTRATORS  [PART  III. 

assets  of  the  donor,  even  though  the  donee  may  have  to  recover 
it  from  the  bank  in  the  name  of  the  donor's  representative.' 
The  mistaken  dehvery  of  a  thing  by  its  custodian  to  the  executor 
or  administrator,  where  the  title  had  in  fact  passed  out  of  the 
owner  before  his  death,  does  not  conclude  it  as  assets,  for  it  is 
proper  that  the  mistake  be  rectified.^ 

§  205.  Personal  Property  of  Another  among  the  Goods  of  De- 
ceased not  Assets  ;  Identification.  —  If  goods,  money,  or  securi- 
ties belonging  to  another  person  lie  amongst  the  goods  of  the 
deceased,  capable  of  identification,  and  they  come  altogether  to 
the  hands  of  the  personal  representative,  such  other  person's 
things  are  not  to  be  reckoned  among  assets  of  the  estate.^  Nor 
is  money  collected  by  an  attorney,  factor,  or  agent,  and  kept 
distinct  and  unmixed  with  the  rest  of  his  property.'*  So,  prop- 
erty held  by  a  trustee  or  fiduciary  officer  is  not  assets  in  the 
hands  of  his  executors,  administrators,  or  assignees ;  but  a  new 
trustee  should  rather  be  appointed  to  hold  the  fund  in  the  stead 
of  the  decedent. 5  Only  those  things  in  which  the  decedent  had 
a  beneficial  interest  at  his  death  are  assets,  and  not  those  which 
he  holds  in  trust  or  as  the  bailee  or  factor  of  another.^ 

In  order,  however,  that  the  third  party  or  new  fiduciary  may 
claim  his  specific  thing  as  separable  from  assets,  its  identity 
should  have  been  preserved  ;  and  the  rule  is  that  if  the  deceased 
held  money  or  other  property  in  his  hands  belonging  to  others, 
whether  in  trust  or  otherwise,  and  it  has  no  ear-mark  and  is  not 
distinguishable  from  the  mass  of  his  own  property,  it  falls  within 
the  description  of  assets ;  in  which  case  the  other  party  must 
come  in  as  a  general  creditor.^ 


■  Watson  V.  V^'atson,  69  Vt.  243.  *  See  Shakespeare  v.  Fidelity  Co.,  97 

'  Sherman  7'.  Sherman,  3  Ind.  337.  Penn.  Stat.  173. 

3  Wms.  Exrs.  1675  ;  Coopers/.  White,  'Story,  J.,  in  Trecothick  v.  Austin, 

19  Ga.  554.  4    Mason,    29;    Johnson   v.    Ames,    11 

*  Schoolfield  v.  Rudd,  9  B.  Mon.  291.  Pick.  172.     Where  a  Hfe  beneficiary  in- 


5  United  States  v.  Cutts,  i  Sumn 
133;  Johnson  v.  Ames,  11  Pick.  173 
Green  v.  Colhns,  6  Ired.  L.  1 39  ;  Thomp 
son  V.  White,  45  Me.  445 ;  Wms.  Exrs- 
1675. 

290 


vests  the  capital  and  income  as  one 
fund,  the  division  of  the  property  at 
her  death  is  largely  a  question  of  con- 
venience.    65  N.  H.  139. 


CHAP.  I.]  ASSETS  OF  A\  ESTATE.  §  20/ 

The  receiver  of  letters,  we  may  add,  has  but  a  qualified  prop- 
erty in  them  ;  they  pass  to  the  executor  or  administrator,  but 
not  as  available  assets,  inasmuch  as  the  sender  is  interested  in 
their  publication." 

§  206.  Personal  Property  of  the  Decedent  left  in  Another's 
Possession  is  Assets.  —  Personal  property  belonging  to  the  de- 
ceased, on  the  other  hand,  which  was  in  the  possession  or  con- 
trol of  a  third  person,  whether  rightfully  or  wrongfully,  at  the 
time  of  his  death,  will  vest  as  assets  in  the  executor  or  adminis- 
trator of  the  owner ;  and  to  him  the  custodian  should  surrender 
possession  ;  though  here,  once  more,  the  decedent's  property 
must  be  capable  of  identification,  else  there  is  left  but  a  right  of 
action  to  recover  their  value  or  damages.  Chattels  and  money 
in  the  hands  of  a  deceased  minor's  guardian  vests  likewise  for 
purposes  of  administration  in  the  minor's  executor  or  administra- 
tor, if  there  be  one  ;  and  this  even  though  the  guardian  may  be 
eventually  entitled  to  the  same  as  legatee  or  distributee  after 
the  estate  is  settled." 

§  207.  Personal  Property  constitutes  Assets  notvrithstanding 
Ultimate  Title  of  Legatees,  Heirs,  etc.  —  Personal  property  con- 
stitutes assets  for  the  purposes  of  administration  and  a  general 
winding  up  of  the  deceased  person's  estate  ;  even  though  upon 
a  due  adjustment  that  property  or  its  residue  shall  go  to  lega- 
tees, general  or  specific,  or  to  residuary  legatees  or  distributees, 
or  trustees,  if  not  otherwise  needed ;  for  administration  is  in 
fact  the  crucial  test  by  which  the  title  of  all  such  parties,  through 
the  sufficiency  or  deficiency  of  the  estate,  shall  be  determined, 
and  the  title  devolves  first  of  all  upon  the  decedent's  personal 
representative.^ 

As  against  even  a  sole  legatee  or  distributee,  therefore,  or 
the  person  to  whom  such  party  in  interest  ?ias  given  a  promissory 

'  Eyre  z'.  Higbee,  35  Barb.  502  ;  Pope  are  assets.  Head  v.  Sutton,  31  Kan. 
V.  Curl,  2  Atk.  342.  6 1 6. 

^  Beant/.  Bumpus,  22  Me.  549.  What-  ^  See  Woodfin  v.  McNealy,  9  Fla. 
ever  one   receives  before  appointment     256. 

291 


§    208  EXECUTORS    AND    ADMINISTRATORS.  [PART   III. 

note  or  other  asset  of  personal  property,  the  representative  may 
follow  up  and  claim  such  assets  for  administration.' 

§  208.  Debt  due  from  Representative  or  Legatee,  etc.,  to  the 
Decedent  constitutes  Personal  Assets.  —  By  the  Common  law, 
the  appointment  of  one's  debtor  to  be  the  executor  of  the  will 
was  held  to  extinguish  the  debt ;  -  and  so  far  was  the  rule  carried, 
out  of  favor  to  the  representative,  that  if  he  died  before  probate 
or  was  one  of  joint  debtors,  extinguishment  occurred,  notwith- 
standing the  technical  reasons  given  for  the  doctrine.'  But 
this  is  changed  in  most  parts  of  the  United  States  by  statutes 
whose  intendment  appears  to  be  to  place  the  debt  owing  from 
a  personal  representative  upon  the  same  footing  with  debts  due 
the  estate  from  other  sources  ;  ■»  and  our  probate  and  equity  rule 
is  to  hold  the  executor  accountable  for  the  debt  as  assets.  In 
some  States  where  the  old  rule  has  been  discarded,  the  right 
of  those  interested  in  the  estate  to  compel  the  executor  or  ad- 
ministrator to  charge  himself  with  an  indebtedness  due  from 
him  to  the  deceased,  is  fully  recognized  ;  but  it  is  said  that  as 
soon  as  the  debtor  is  appointed,  if  he  acknowledges  the  debt,  he 
has  actually  received  so  much  money  and  is  answerable  for  it, 
he  and  the  sureties  of  his  probate  bond,  in  like  manner  as  if  he 
had  received  it  from  any  other  debtor  of  the  deceased. 5 

'  136  Mass.  54;  Bean  v.  Bumpus,  22  Odell,  27  Ohio  St.  398.     And  see  Eng- 

Me.  549.     Replevin  may  be  brougiit  by  lish  stat.   i    Vict.  c.   26,  §  7  ;  20  &  21 

him.     Pritchaid  7>.  Norwpod,  155  Mass.  Vict.  c.  77,  §  79;  Wms.  Exrs.  15,  286, 

539.  131 2.     The   effect   of   the   New    York 

^  Cro.  Car.  373;   i  Salk.  299;  Cheet-  statute  charging  the   representative  as 

ham  V.   Ward,   i    B.  &  P.  630 ;  Wms.  for  money,  etc.,  is  not  to  discharge  any 

Exrs.  1310;  Co.  Lit.  264  b.  security  given  for  the  debt.     Soverhill 

^    Perhaps,    where   the    executor   re-  ?'.  Suydam,  supra.     Where  one  of  two 

nounced,    the    rule  was    different.     In-  administrators  was  liable  as  principal 

tendment  of  the  will  appears  to  be  the  to  the  intestate  who  was  his  surety,  his 

true  reason ;  but    that    alleged   by  the  liability  to  the  intestate's  estate  is  assets 

courts  was,  the  rights  of    debtor   and  in  the  administrator's  hands,  for  which 

creditor  united  in  one  and  the  same  per-  they  are  both  accountable.     Bassett  z/. 

son.     Wms.  Exrs.  13 10.  Granger,     136    Mass.     175.     And    see 

*  McCarty   v.    Frazer,    62    Mo.   263;  Hines  v.  Hines,  95  N.  C.  482. 
Adair  z'.  Brimmer,  74  N.  V.  539;  Sov-         ^  Stevens  v.  Gaylord,   11  Mass.  269; 

erhill  v.  Suydam,  59  N.  Y.  142;  Jacobs  Leland   v.    Felton,    i    Allen,    531,  and 

V.   Woodside,  6  Rich.  490;  Shields  v.  cases  cited;   Hall   v.   Hall,    2   McCord 

292 


CHAP.   I.] 


ASSETS    OF    AN    ESTATE. 


§    208 


The  fact  that  the  representative  charges  himself  in  his  inven- 
tory or  account  with  his  debt,  settles  the  question  that  he  owes 
the  estate  and  the  amount  of  his  debt ;  it  is  a  fact  upon  which 
great  stress  is  laid  ;  but  an  executor  cannot  escape  his  liability 
or  change  the  character  of  it  by  failing  to  charge  himself  with 
his  own  debt  ;  nor  is  charging  himself  with  it  the  only  way  in 
which  the  fact  of  his  indebtedness  may  appear  to  be  proved.' 
An  extinguishment  of  the  instrument  upon  which  the  indebted- 
ness was  founded,  may,  independently  of  statute,  occur  here  by 
operation  of  law,  with  the  modern  consequence  that  the  sums 
due  thereon  have  become  realized  assets  of  the  estate  ;  ^  but  the 
rule  appears  not  to  apply  regardless  of  the  particular  circum- 
stances. 

A  debt  due  the  deceased  from  a  legatee  or  distributee  is  fur- 
thermore reckoned  as  assets  by  the  modern  rule,  in  the  absence 
of  evidence  that  forgiveness  of  the  debt  was  intended  ;  and  for 


Ch.  269.  Upon  the  acceptance  of  the 
trust,  and  returning  the  same  in  the  in- 
ventory as  assets  of  the  deceased,  a 
correspondent  legal  liability  is  assumed 
which  cannot  be  divested  by  a  subse- 
quent resignation  of  the  trust.  Leland 
V.  Felton,  i  Allen,  531.  Indeed,  the 
liability  to  duly  account  for  such  a  debt 
is  assumed  on  acceptance  of  the  office, 
lb. 

Yet  the  return  of  a  debt  in  the  inven- 
tory as  solvent  is  usually  prima  facie 
proof  that  it  is  collectible,  and  by  no 
means  conclusive  proof  that  it  has  been 
collected.  The  rule  if  asserted,  as  in 
the  text,  with  especial  stringency  against 
the  representative's  own  debt  to  the 
deceased,  is  from  motives  of  policy,  and 
to  discourage  bad  faith  under  circum- 
stances of  especial  temptation.  The 
more  consistent  rule  appears  to  be  that 
the  return  of  the  inventory  affords  a 
presumption  only,  and  that  if  the  repre- 
sentative shows  that  he  cannot  pay,  and 
has  not  paid,  he  need  not  be  charged 
with  the  debt  as  cash.    Baucus  v.  Stover, 


24  Hun,  109;  United  States  v.  Eggles- 
ton,  4  Sawyer,  199;  3  Dem.6io;  §542. 

The  appointment  de  bonis  non  of  one 
who  was  surety  on  the  bond  of  his  pred- 
ecessor does  not  make  a  debt  due  the 
estate  from  such  predecessor  assets  in 
his  hands  by  reason  of  his  suretyship. 
Shields  v.  Odell,  27  Ohio  St.  398. 

'  Endicott,  J.,  in  Tarbell  v.  Jewett, 
129  Mass.  457,  461. 

^Tarbell  v.  Jew-ett,  129  Mass.  457  ; 
Freakleyz/.  Fox,  9  B.  &  C.  130;  Ipswich 
Man.  Co.  v.  Story,  5  Met.  310;  Robin- 
son V.  Hodgkin,  99  Wis.  327. 

The  general  rule  is  that  where  a 
judgment  debtor  becomes  the  personal 
representative  of  the  judgment  creditor, 
the  judgment  is  extinguished,  and  the 
debt  becomes  a  realized  asset  in  his 
hands  to  be  accounted  for  in  court. 
But  this  rule  is  subject  to  many  excep- 
tions; and  the  mauner  in  which  the 
representative  treats  this  judgment  debt 
in  the  course  of  his  dealing  with  the 
estate  may  affect  the  question  whether 
an  extinguishment  has  actually  taken 
place.     Charles  7\  Jacob,  9  S.  C.  295. 


293 


§    209  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

realizing  upon  this  indebtedness,  the  legacy  or  surplus  accruing 
to  such  person  may  afford  good  security.'  Forgiveness  of  a 
debt,  therefore,  operates /r^  ianto,  if  so  limited  by  the  deceased  ; 
and  this  is  a  rule  of  general  application.  Thus,  where  one  leaves 
a  legacy  and  releases  only  the  principal  of  an  interest-bearing 
debt,  the  interest  should  be  treated  as  assets  and  set  against  the 
legacy  ;  -  the  true  intent  of  the  transaction  resolving,  however, 
the  question. 

Where  the  partner  of  a  firm  or  the  officer  of  a  corporation, 
owing  the  deceased  a  debt,  becomes  executor  or  administrator, 
the  indebtedness  becomes  assets  in  his  hands.-^  An  administra- 
tor, who  owes  the  estate  to  which  he  was  appointed,  must  ac- 
count for  the  debt  ;  and  since  his  appointment  was  not  the  act 
of  the  creditor,  the  common  law  never  treated  him  as  privileged 
like  an  executor  in  this  respect. •♦ 

§  209.  Personal  Assets  coming  to  the  Kno^^ledge  but  not  Poa- 
session  of  the  Representative.  —  An  executor  or  administrator  is 
chargeable,  because  of  the  trust  he  has  accepted,  with  goods  and 
chattels  of  the  deceased  coming  to  his  possession  or  knowledge  ; 
and  the  want  of  actual  possession  does  not  dispense  with  prudent 
attempts  on  his  part  to  collect,  enforce,  or  obtain  possession. 
All  the  chattels  of  the  deceased,  wherever  situated,  are  assets, 
if  the  representative,  by  reasonable  diligence,  considering  the 
means  of  the  estate  already  under  his  control,  might  have  pos- 
sessed himself  of  them.^  If  the  jurisdiction  afforded  by  his  let- 
ters of  authority  does  not  enable  him  to  obtain  or  collect  them, 
it  is  somewhat  different ;  and  yet  as  to  such  assets,  one  appointed 
within  the  original  jurisdiction  should  have  ancillary  letters 
taken  out,  if  this  course  appear  prudent,  in  order  that  no  reason- 

'  Post,  §  248,  as  to  the  effect  of  giving  ■*  i    Salk.  306.     It  was  said  that  in 

a  legacy  to  one's  debtor ;  Wms.  Exrs.  case  of  an  administrator  there  was,  at 

1303,  1304  ;  Springer's  Appeal,  29  Penn.  most,  only  a  suspension  of  the  remedy 

St.  208;  and  see  §  492a.  on  his  appointment. 

*  Hallowell's    Estate,    23    Penn.    St.  '  Gray  v.   Swain,   2    Hawks.  (N.  C.) 
223.  15  ;  Tuttle  V.  Robinson,  33  N.  H.  104; 

*  Eaton  V.  Walsh,  42  Mo.  272.  Palmer  v.  Palmer,  55  Mich.  293. 

294 


CHAP.  I.]  ASSETS  O]"  AN  ESTATE.  §  2IO 

able  means  may  be  wanting  to  gather  in  the  whole  of  the  dece- 
dent's personal  estate.' 

On  the  other  hand,  chattels  of  the  deceased,  not  procured 
from  the  possession  of  others,  and  debts  uncollected,  do  not 
constitute  available  assets  in  the  hands  of  his  executor  or  admin- 
istrator, where  there  has  not  been  culpable  negligence  or  re- 
missness on  his  part  in  the  trust ;  -  though  it  would  appear 
incumbent  upon  such  fiduciary  to  consider  himself  chargeable 
with  all  such  things,  and  be  prepared  to  show  why  he  failed  to 
collect  or  obtain  possession  of  each  according  to  its  value,  while 
in  the  exercise  of  his  official  functions. 

§210.  Personal  Assets  or  not,  -where  Decedent's  Title  -was  Qual- 
ified. —  In  what  has  been  said  under  the  present  head,  we  have 
supposed  the  title  to  personal  property,  indeed,  to  be  so  vested 
in  the  deceased  at  his  death,  as  properly  to  devolve  at  once  upon 
his  legal  representatives.  But  where  the  deceased  was  entitled 
to  the  chattel  or  fund,  jointly  with  another,  so  as  to  carry  the 
title  over  to  his  survivor,  or  in  common,  or  in  partnership,  or 
under  a  trust  which  excluded  his  beneficial  interest,  —  in  these 
and  similar  peculiar  relations,  the  title  not  devolving  upon  the 
executor  or  administrator  of  the  deceased,  or  devolving  not  with 
respect  to  the  specific  thing,  but  rather  so  as  to  constitute  a 
claim  for  partition  of  a  thing,  or  for  sharing  in  the  surplus  of 
some  fund  yet  to  be  ascertained,  there  is  nothing  to  be  considered 
assets,  or  else  the  assets  assume  for  administration  a  different 

'  Supra,   §  175,   as  to   assets  out  of  ciary,  whether  the  things  have  come  to 

the  sovereign  jurisdiction.  his  possession  or  not,  and  is  personally 

^  Tuttle  V.   Robinson,  33  N.  H.  104;  chargeable  wdth  the  value  of  that  which 

Ruggles    V.    Sherman,    14   Johns.    446.  belonged  to  the  estate,  and  was  lost  or 

The  general  rule  laid  down  in  the  old  never  recovered  at  all  through  his  neg- 

books  is  that  an  executor  or  administra-  ligence.     The  English  doctrine  appears 

tor  shall  not  be  charged  with  any  other  to  regard  the  executor  as  a  "  gratuitous 

goods  or  assets  than  those  "  which  come  bailee  "  ;   but  in  the  United  States,  and 

to   his   hands."     But    the  construction  where  the   trust    is   regularly  compen- 

placed  upon  this  expression  is  such  as  sated,  it  seems  that  his  responsibility  is 

to  deprive  it  of  literal  force.     See  5  Co.  equivalent  to  that  of  a  bailee  for  hire. 

?>Z  '^'  34  '^ !  Wentw.  Off.  Ex.  227,  14th  Under  an  appropriate  head  this  subject 

ed. ;  Wms.  Exrs.   1667,  1668.     The  ex-  will  be  more  fully  considered  hereafter, 

ecutor    or    administrator    is,    in    truth,  See  Part  W.,fost. 
chargeable,  as   a  sort  of   bailee  or  fidu- 

295 


§211  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

shape,  such,  for  instance,  as  an  undivided  interest,  or  a  claim  to 
some  unascertained  surpkis.'  All  this  is  in  general  conformity 
with  the  laws  which  regulate  the  transfer  and  transmission  of 
title  to  personal  property.^ 

§211.  Various  Cases  -where  Representative  does  not  hold 
strictly  as  Assets.  —  So,  again,  the  principles  which  regulate  the 
reciprocal  title  of  husband  and  wife,  whether  under  the  old  cover- 
ture rules  or  as  embodied  in  statutes  passed  for  the  more  espe- 
cial behoof  of  the  surviving  widow,  may  affect  the  transmission 
of  title  as  assets  to  the  personal  representative ;  depriving 
him  of  the  right  to  take  possession,  or  to  collect,  or  making  him 
a  mere  conduit  of  title  to  the  surviving  spouse,  regardless  of 
creditors  of  the  estate.^  And  in  various  other  instances  legis- 
lators exhibit  tenderness  toward  the  distressed  survivors  of  a 
family  at  the  expense  of  those  who  have  claims  upon  the  general 
assets  ;  ••  all  of  which  qualifications  to  his  authority  the  legal 
representative  of  an  estate  should  duly  observe. 

The  proceeds  of  a  life  insurance  policy  taken  out  by  the  de- 
cedent and  expressed  to  be  payable  to  another,  as,  for  instance, 
to  his  widow  or  a  child,  or  in  trust  for  such  a  one's  benefit,  are 
not  assets  of  the  estate ;  5  though  it  may  be  that  suit  should  be 
\iXO\\^\.  pro  forma  in  the  representative's  name  on  behalf  of  the 
beneficiary  named.  But  where  the  person  insured  takes  out 
life  insurance  generally,  and  not  for  the  express  benefit  of  others 
surviving  him,  or  where  the  beneficiaries  named  have  prede- 

'  See  as  to  a  debt  or  legacy  going  to  her   own   interest    and    as    trustee    for 

a   survivor,  Green  v.   Green,  3  Sm.  &  others,  see  165  Penn.  St.  123. 

M.    256;    Cote   V.    Dequindre,     Walk.  ^  See  2  Schoul.  Pers.   Prop.,  §§  1-3, 

(Mich.)  64.     As  to  a  deceased  partner's  and  other  general  works  upon  Personal 

interest  in  his  partnership  firm,  Piatt  v.  Property. 

Piatt,  42   Conn.  330;  Moses  v.  Mose.s,  ^  Schoul.  Hus.  &  Wife,  §§  409,  441  ; 

50  Ga.  9.     Where  a  surviving  partner  post,  §   447,  as  to  a  widow's  parapher- 

is  also  executor  of  the  estate  of  his  de-  nalia,  allowances,  etc. 

ceased  co-partner,  and  he  collects  part-  *  lb.      As  to  property  exempt  from 

nership  assets  which  are  not  needed  to  administration,  see  Taylor  v.  I'ettus,  52 

pay  partnership  debts,   he  will  be  pre-  Ala.    287 ;    Heard   v.   Northington,    49 

sumed  to  hold  such  assets  as  executor.  Tex.  439. 

Caskie  v.  Harrison,  76  Va.  85.  =  Senior  v.  Ackerman,  2  Redf.  (N.  Y.) 

But  as  to  abend  running  to  one  for  302;   Cables  v.   Prescott,  67    Me.   582; 

Van  Dermoor,  Re,  42  Hun,  326. 
296 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  212 

ceased,  the  fund  goes  properly  to  legal  representatives  for  the 
benefit  of  the  estate,  and  becomes  assets  for  the  payment  of 
debts."  Pensions  and  public  gratuities,  or  pay  for  army  and 
navy  service,  are  often  made  payable  for  the  direct  benefit  of 
widow,  children  or  parents  ;  ^  and  public  statutes,  thus  expressly 
providing  for  the  beneficial  payment  of  arrears  to  surviving 
members  of  a  family,  exclude  the  notion  of  general  assets  for 
creditors.  There  are  other  instances  where  personal  property 
may  come  to  the  executor  or  administrator  pro  forma,  and  yet 
be  applicable  only  to  special  purposes.^ 

§  2  12.  Real  Estate  descends  to  Heirs;  not  Assets  except  for 
Deficiency.  —  Real  estate,  at  the  common  law,  becomes  vested 
on  the  death  of  the  owner  in  his  heirs  or  devisees,  and  the  ex- 
ecutor or  administrator  has  as  such  no  inherent  power  over  it. 
Lands,  therefore,  are  not  in  a  primary  sense  assets,  to  be  ap- 
propriated for  the  benefit  of  creditors  ;  nor  has  chancery  juris- 
diction to  decree  their  sale  at  the  suit  of  a  creditor,  unless  he 
has  some  specific  lien  or  right  therein.'*  Nor  has  the  executor 
or  administrator  as  such  the  right  to  purchase  land  for  next 
of  kin  or  legatees.'  It  is  only  as  legislation,  or  the  will  of  a  tes- 
tator may  have  conferred  an  express  power  upon  the  executor 
or  administrator,  that  he  can  exert  it  in  respect  of  real  estate, 
unless  authority  has  been  conferred  by  the  heirs  or  devisees 
themselves.  But  modern  enactments,  as  we  shall  see  hereafter, 
usually  permit  the  lands  of  a  deceased  owner  to  be  subjected  to 
the  satisfaction  of  his  just  debts,  in  so  far  as  the  personalty  falls 


'  Hathaway  v.  Sherman,  6i  Me.  466 
Butson,  Re,  9  L.  R.  Ir.  21  ;  Union  Mut 
Life  Ins.  Co.  v.  Stevens,  ig  Fed.  R 
671  ;  Wright  V.  Wright,  100  Tenn.  313 

"Perkins  v.   Perkins,  46  N.  H.   1 10 


3  Sim.  97 ;  Hassall  w.  Smithers,  1 2 
Ves.  119.  E.g.,  money  due  from  bene- 
fit associations.  5  Dem.  (N.  Y.)  326  ; 
Bishop  V.  Curphey,  60  Miss.  22. 

■*  Wms.   Exrs.   650 ;     Drinkwater    v. 


And  see posi  as  to  distribution  under  Drinkwater,  4  Mass.  354;  Lucy  z".  Lucy, 

modern  statutes  which  give  compensa-  55  N.  H.  9 ;  Laidley  v.  Kline,  8  W.  Va. 

tion  to  the  widow,  children,  etc.,  of  one  218  ;  Hanldns  v.  Kimball,  57  Ind.  42  ; 

killed,  by  the  tort  of  a  person  or  corpo-  McPike  v.   Wells,   54    Miss.    136;    Le 

ration.     For  such  a  cause  of  action  does  Moyne  7/.  Quimby,  70  111.  399;  Sheldon 

not  strictly  belong   to    the    estate.     53  v.  Rice,  30  Mich.  296;  145  Mo.  418;  54 

Neb.  674.  Neb.  33  ;  98  Wis.  385. 

'  Wms.  Exrs.  1677  ;  Parry  <■.  Ashley,  '  122  N.  C.  536;  too  Ga.  607. 

297 


§   213  EXECUTORS    AND    ADMINISTRATORS.  [PART   III. 

short  of  paying  them,  and  general  provision  is  made  for  sale  by 
the  executor  or  administrator  under  a  judicial  license  accord- 
ingly.' When  the  necessity  arises  to  deal  with  lands  as  assets, 
the  heirs  or  devisees  should  have  due  notice,  nor  in  any  case 
can  their  beneficial  rights  be  safely  ignored  ;  -  and  so,  too,  the 
full  statutory  requirements  should  be  pursued. 

Moreover,  the  personal  representative  will  only  be  permitted 
to  sell  so  much  of  the  land  as  may  discharge  the  debts,  unless, 
perhaps,  by  a  partial  sale  the  interests  of  the  heirs  and  devisees 
would  be  unduly  injured.  And  even  though  it  should  become 
necessary  to  make  a  sale  under  a  license,  the  executor  or  admin- 
istrator, as  such,  is  not  called  upon  to  perfect  the  title  or  relieve 
the  land  of  any  burden  ;  but  he  should  sell  as  he  finds  it.  He 
has  no  authority  to  warrant  the  title  he  conveys  in  such  a  case ; 
but  the  rule  of  caveat  emptor  applies.'  Should  there  be  a  ficti- 
tious incumbrance  on  the  lands  that  would  deter  purchasers 
from  buying,  it  is  eminently  proper  for  the  heir  or  devisee,  in 
order  to  protect  his  estate  by  procuring  a  full  price,  to  institute 
proceedings  for  removing  the  incumbrance.  But  separate  cred- 
itors against  the  estate  acquire  no  such  interest  or  specific  lien 
on  the  premises  as  would  justify  such  proceedings  on  their  part, 
even  though  the  sale  were  necessary  for  paying  their  claims,'' 

sj  213.  Executor  or  Administrator  has  no  Inherent  Authority  as 
to  Real  Estate. —  It  follows  generally  that  if  the  representative 
takes  possession  of  the  real  estate  of  the  deceased,  he  is  account- 
able to  the  heirs  as  their  agent,  and  not,  strictly  speaking,  to 
the  probate  court  in  his  official  capacity,  though  for  convenience 
he  will  often   manage  as  by  consent  of  the  heirs. 5     Proceeds  of 


'  lb.     See  post.    Part   VI.,  c.  2,  as  to  It    is   often  of  advantage  to  the  heirs 
sale  of  lands  under  license,  etc.  to    permit    the    representative   to   col- 
^  McPike  z/.  Wells,  54  Miss.  136.  lect   rents,   and   this    course  may  save 
^  Shup  V.  Calvert,  174  111.  500.  sometimes  the  sale  of  the  real   estate 
^  Le  Moyne  v.  Quimby,  70  111.  399.  to  pay  debts.    Kimball  z/.  Sumner,  «(/>ra. 
'  Taylor,  Landl.  &  Ten.  §   390 ;   Mc-  Inasmuch  as  the  administrator  who  col- 
Coy  V.  Scott,  2  Rawle,  222 ;  Kimball  v.  lects  rents  holds  them  for  the  heir,  and 
Sumner,  62  Me.  309  ;  Lucy  v.  Lucy,  55  not  as  assets  for  the  creditors,  he  holds 
N.  H.  9;  Palmer  7j.    Palmer,   13    Gray,  them  for  his  own  use  where  he  himself 
328;  Kidwell  V.  Kidwell,  84  Ind.  224.  is  the  heir.    Schwartz's  Estate,  i4Penn. 

298 


CHAP.  I.] 


Assets  of  an  estate. 


§  213 


a  sale  by  an  executor  empowered  under  the  will  to  sell  for  the 
benefit  of  legatees  arc  not  presumably  to  be  brought  into  the 
general  administration."  The  representative  has  no  cause  to 
recover  possession  of  the  lands  of  the  deceased  by  a  suit  at  law, 
and  cannot  maintain  such  a  suit.' 

Nor  has  the  executor  or  administrator  an  inherent  right  to 
enforce  the  specific  performance  of  a  contract  to  convey  land  to 
his  decedent ;  unless,  at  all  events,  the  personal  estate  is  insuffi- 
cient for  the  purposes  of  administration  and  the  land  should  be 
sold  by  him  accordingly.^  Land  clearly  conveyed  by  the  decedent 
during  life  is  not  thus  available  even  though  the  deed  was  not 
recorded  until  after  his  death.''  Land  conveyed  in  fraud  of 
creditors  forms  no  part  of  the  deceased  grantor's  estate,  and  it 
is  the  creditors,  not  the  administrator,  who  should  attack 
the  conveyance.5  And  whatever  means  a  creditor  may  law- 
fully pursue  in  order  to  render  the  heirs  of  the  deceased  liable 
with  the  personal  representative  to  settle  his  demand,  the  per- 
sonal assets  of  the  estate  must  be  exhausted  before  resort  can 
be  had  to  the  realty.'' 


St.  42.  In  Michigan  and  some  other 
States  the  personal  representative  is  ex- 
pressly authorized  by  statute  to  collect 
rents  and  take  control  of  the  real  estate 
of  the  deceased  during  the  settlement 
of  the  estate.  Kline  v.  Moulton,  1 1 
Mich.  370;  Wms.  Exrs.  821,  and  Per- 
kins's note.  This  does  not  render  him 
liable  to  account  to  the  estate  for  such 
rents.  Head  v.  Sutton,  31  Kan.  616. 
And  see  §  510. 

'  Aston's  Estate,  5  Whart.  228 ; 
Fromberger  v.  Greiner,  5  Whart.  350. 

^  Drinkwater  v.  Drinkwater,  4  Mass. 
354.  Nor  a  homestead  set  apart  for 
the  wife.  120  Cal.  421.  Heirs,  and 
not  the  administrator,  should  enforce  a 
trust  in  land  in  favor  of  the  decedent. 
Field  V.  Andrada,  106  Cal.  107.  Or  a 
writ  of  entry  brought  by  demandant,  so 
far  as  tne  right  to  sue  may  continue. 
152  Mass.  257. 

Money    due  the    decedent    for   land 

2 


which  he  sold  when  alive  is  personalty. 
137  Penn.  St.  454,  457. 

^  Carpenter  z/.  Fopper,  94  Wis.    146. 

*  167  Mass.  205. 

5  Willis  V.  Smith,  65  Tex.  656.  But 
statutes  sometimes  extend  the  repre- 
sentative's right  in  this  respect.  122 
N.  C.  683;   150  Ind.  260;  71  Wis.  148. 

^  Hoffman  v.  Wilding,  85  111.  453 : 
sale  of  lands,  Part  VI.,  c.  2,  post.  In 
Arkansas  and  some  other  States  the 
law  is  that  the  real  as  well  as  the  per- 
sonal estate  of  the  deceased  shall  be 
treated  as  assets  in  the  hands  of  the 
representative;  neither  species  of  prof)- 
erty,  however,  to  be  sold  without  an 
order  of  the  probate  court.  Tate  v. 
Norton,  94  U.  S.  746;  Meeks  v.  Vas- 
sault,  3  Sawyer,  206.  In  Delaware,  too, 
at  a  very  early  period  under  the  pro- 
prietary government,  the  common  law 
was  changed  in  this  respect ;  lands  were 
made  liable  as  well  as  chattels  for  the 

99 


§    2  14  EXECUTORS    AND    ADMINISTRATORS.  [PART   III. 

§  2  1 4.    Real  Estate  of  Mortgagor  or  Mortgagee ;   Rule  of  Assets. 

— Where  one  dies  seized  of  real  estate  incumbered  by  a  mortgage, 
the  land  descends  to  heirs  or  devisees  subject  to  that  special  in- 
cumbrance ;  in  other  words,  the  equity  of  redemption  vests  in 
them.  If  such  mortgage  be  afterwards  foreclosed  and  the  land 
sold,  any  surplus  on  the  sale  is  regarded  as  realty,  and  goes  to 
the  heirs  or  devisees  ;  and  the  representative,  as  such,  cannot  re- 
gard it  as  personal  assets  nor  sue  to  recover  it,'  except  for  the 
contingency  of  having  to  sell  under  a  license,  as  already  noticed. 
Generally,  when  land  is  sold  for  a  specific  purpose  or  under  a 
mortgage,  the  surplus  money,  as  also  between  the  heirs  and  next 
of  kin,  is  considered  as  land  ;  but  after  it  has  once  vested  in  the 
person  entitled  to  it,  it  becomes  money,  and  on  his  death  passes 
to  his  own  representatives  as  personal  estate.^ 

As  for  the  mortgagee  of  real  estate,  such  mortgage  before 
foreclosure  is  only  security  in  his  hands  for  indebtedness  or  a 
liability,  and  equity  treats  it  as  a  chattel  interest,  which  passes 
to  the  executor  like  the  principal  cJiosc  in  action.'^  The  same 
doctrine  applies  to  the  assignee  of  a  mortgage.''  Where  lands 
mortgaged  to  the  deceased  are  taken  into  possession,  and  fore- 
closed after  his  death  by  his  executor  or  administrator  for  breach 
of  condition,  the  executor  or  administrator  shall  hold  the  estate 
until  his  functions  touching  it  are  fully  performed,  or  until  distri- 

payment  of  debts,   and  they  might  be  of  an  ordinary  purchaser.     Johnson  v. 

taken  and  sold  on  execution  process,  or  Patterson,  13  Lea,  626. 
sold    by  executors  and   administrators         ^  Sayers's  Appeal,  79  Penn.  St.  428 ; 

for  the  debts  of  their  decedents.     Vin-  Foster's    Appeal,    74    Penn.    St.    391 ; 

cent  V.  Piatt,  5  Harring.  164.  See  also  Sweezy  v.  Willis,  i  Bradf.  (N.  Y.)  495. 
Jones  V.  Wightman,  2  Hill  (S.  C.)  579  ;         ^  Wms.  Exrs.  687  ;   Tabor  v.  Tabor, 

Jennings  v.  Copeland,  90  N.  C.  572.  3  Swanst.  636;  Jones  and  other  general 

'  Though  the  mortgage  provides  that  writers  on  Mortgages ;  Chase  v.  Lock- 

the  surplus  shall   be  paid  to  the  mort-  erman,  11  Gill  &  J.  185  ;  Fay  z/.  Cheney, 

gagoror"his  executors  or  administra-  14  Pick.  399;   Steel  v.   Steel,  4   Allen, 

tors,"  this  is  the  true  construction  to  417;    Burton    v.    Hintrager,    18    Iowa, 

place  upon  the  transaction.     Dunning  348.     A   Welsh  mortgage  follows  this 

V.   Ocean    Nat.    Bank,    61  N.    Y.    497.  rule.     Longuet  v.  Scawen,  i    Yes.  Sen. 

And  see  Cox  v.   McBurney,   2    Sandf.  406. 

561.     Cf.   Heighway  v.   Pendleton,    15         ■♦  Statutes  sometimes  emphasize  the 

Ohio,    735.      So   where    heirs    of   the  rule  of  the  text.     Mass.  Gen.   Stats,  c. 

mortgagee  buy  in  the  land  at  a  fore-  96,  §  9. 
closure  sale,  their  position  is  like  that 

300 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  2l6 

bution  ; '  and  such  property,  it  would  appear,  is  to  be  held  and 
dealt  with  like  other  personal  assets,  this  being  its  character 
when  the  representative's  title  vested  by  reason  of  the  owner's 
death.' 

§  21  5.  Rule  of  Assets  as  to  Lands  set  off  in  Execution. —  Land 
set  off  to  an  executor  or  administrator  upon  an  execution  recov- 
ered by  him  on  a  debt  which  was  due  to  the  deceased  personally, 
appears  to  follow  the  same  rule  as  in  the  representative's  fore- 
closure of  a  mortgage.  The  right  of  action,  in  other  words, 
having  once  vested  in  the  representative,  whatever  may  be  real- 
ized thereon  afterwards  goes  properly  as  assets  for  the  general 
benefit  of  the  estate,  being  the  result  of  a  prudent  pursuit  or 
enforcement  of  that  right ;  and  hence  the  real  estate  taken  on 
execution,  or  its  proceeds,  will  vest  in  the  representative  as  per- 
sonal assets,  to  be  paid  out  or  distributed  eventually,  and  mean- 
while held  in  trust.^ 

§  216.  Rents,  Profits,  and  Income  of  Real  Estate;  Damages,  etc.; 
Rule  of  Assets. — The  profits  and  income  of  real  estate,  inci- 
dental to  its  beneficial  enjoyment,  follow  by  operation  of  law 
the  title  to  the  premises.  The  rents  of  a  decedent's  lands  (not 
being  apportionable  at  common  law)  go  according  to  this  prin- 
ciple, in  the  absence  of  local  statutes  providing  for  apportion- 
ment. The  rents  accruing  previous  to  the  lessor's  death  belong 
to  his  personal  representative,  and  those  accruing  after  his  death 
to  the  heir  or  devisee.* 


'  Boylston  v.  Carver,  4  Mass.  598 ;  ••  Tayl.  Landl.  &  Ten.  §  390 ;  supra. 
Palmer  v.  Stevens,  11  Cush.  148;  Terry  §  213;  Peck  v.  Ingersoll,  7  N.  Y.  528; 
7'.  Ferguson,  8  Port.  500  ;  Harper  v.  Stinson  v.  Stinson,  38  Me.  593 ;  Spar- 
Archer,  28  Miss.  212;  Taft  V.  Stevens,  hawk  v.  Allen,  25  N.  H.  261  ;  Gibson 
3  Gray,  504.  v.  Farley,    16  Mass.  280;  Fay  v.  Hol- 

*  Local  statutes  are  found  to  affirm  loran,  35  Barb.  295 ;  Kohler  v.  Knapp, 

this    rule.      Mass.    Gen.    Stats,    c.   96,  i  Bradf.  241  ;  Robb's  Appeal,  41  Penn. 

§§  9-12.  St.  45  ;  King  V.  Anderson,  20  Ind.  385  ; 

'  Boylston  v.   Carver,  4  Mass.   598;  Foltz  v.  Prouse,  17  111.  487  ;  Foteaux  v. 

Taft  V.   Stevens,   3  Gray,  504.     Local  Lepage,  6  Iowa,  123;   Smith  v.  Bland, 

statutes  confirm  this  rule.     Mass.  Gen.  7   B.   Mon.  21;    Flemings-.    Chunn,   4 

Stats,   c.  96,  §§   9-12;   Williamson   v.  Jones  Eq.  422  ;  Bloodworth  7^.  Stevens, 

Furbush,  31  Ark.  539.  51    Miss.    475;    Crane   v.    Guthrie,    47 

301 


§    217  EXECUTORS    AND    ADMINISTRATORS.  [PART   III. 

So,  too,  a  lessor's  claim  for  damages  accruing  after  his  death 
goes  with  the  title  to  the  heir  or  devisee.' 

§  2  1 7-  Legal  Character  of  Property,  Real  or  Personal,  fixed  at 
Owner's  Death;  Rule  of  Equitable  Conversion.  —  In  general,  SO 
far  as  executors  or  administrators  are  concerned,  the  character 
of  property,  whether  as  real  or  personal,  is  that  impressed  upon 
it  at  the  death  of  the  testate  or  intestate,  and  does  not  change 
by  any  subsequent  conversion  in  the  course  of  administration.^ 
Indeed,  a  testator  cannot  alter  the  legal  character  of  his  real  or 
personal  property  by  directing  that  it  shall  be  considered  of  the 
one  class  instead  of  the  other.^ 

In  equity,  however,  that  which  should  have  been  done  is 
treated  in  many  instances  as  actually  done;  agreeably  to  which 
maxim,  money  is  often  to  be  regarded  as  land,  and  land  as 
money ;  though  the  principle  is  not,  apparently,  pushed  to  the 
extent  of  allowing  property  to  be  retained  in  the  one  shape,  and 
yet  devolve  in  title  as  though  it  were  of  the  other.'*  An  equita- 
ble conversion  may  take  place,  therefore,  subsequently  to  the 
testator's  death,  by  reason  of  directions  contained  in  the  will 
itself  and  properly  executed.  Such  conversion,  however,  is  not 
favored,  nor  extended  upon  inference.  Accordingly,  a  testa- 
tor's direction  to  convert  his  real  estate  into  personalty,  for 
specified  purposes,  must  be  restricted  to  those  objects,  and  any 
surplus  proceeds  after  execution  of  the  power  will  go  as  realty ;  5 
though,  should  it  clearly  appear  that  the  testator  intended  an 
absolute  conversion  for  all  the  purposes  of  the  will,  the  proceeds 

Iowa,  542  ;  8o  Ala.  388.     So,  too,  where  ^  Hamer   v.   Bethea,    ii    S.    C.    416; 

rent  is  payable  in  kind.      Cobel  z/.  Cobel,  Rogers  v.  Paterson,  4  Paige,  409. 

8  Penn.  St.  342.     Except  as  to  payment  ^  Wms.  Exrs.  657;  Clay  z/.   Willis,  i 

in  crops  not  yet   ripe.     Wadsworth  t.  B.  &  C.  364;   Johnson  z/.  Arnold,  i  Ves. 

Allcott,  6  N.  Y.  64.  171. 

Accordingly,  the  executor  of  a  lessor  *  Wms.  Exrs.  659  ;   i  Jarm.  Wills,  3d 

might  distrain  for  arrears  of  rent  due  at  Eng.  ed.  551. 

the  time  of  the  testator's  death,  but  not  '  Wms.  Exrs.  658;  Fletcher  v.  Ash- 

for    rent    which   accrued  subsequently,  burner,  i  Bro.  C.  C.  497  ;  Hill  v.  Cock, 

Taylor  Landl.  &  Ten.  §  570.  1  Ves.  &  Bea.   173.     And  see  Foster's 

'  Kernochan  v.  Elevated  R.  R.  Co.,  Appeal,    74    Penn.    St.    391 ;    Thoma.s, 

128  N.  Y.  559.  Petition  of,  4  Thomp.  &  C.  (N.  Y.)  410. 

302 


CHAP.    I.]  ASSETS    OF    AN    ESTATE.  §   2lS 

will  constitute  assets  in  the  hands  of  the  executor,  for  the  pay- 
ment of  legacies  as  well  as  of  debts  and  funeral  expenses.' 
Again,  there  may  be  a  constructive  conversion  of  real  into  per- 
sonal, or  personal  into  real,  property,  at  the  time  of  the  testa- 
tor's decease.^ 

In  the  administration  of  an  intestate  estate,  the  rule  of  equi- 
table conversion  is  of  little  or  no  practical  consequence.  But 
in  administration  under  a  will  it  may  be  found  of  much  import- 
ance. In  the  latter  instance,  the  general  rule  deducible  from 
English  and  American  decisions  is,  that,  vi^here  the  will  shows 
unequivocally  that  the  testator  meant  to  convert  real  estate  into 
personal,  the  law  will  consider  the  conversion  as  actually  made 
at  the  death  of  the  testator,  and  treat  the  estate  as  personal  for 
all  the  purposes  plainly  intended  by  the  will.^  Conversely, 
where  the  testator  shows  a  clear  intention  that  personal  estate 
shall  be  converted  into  real,  as  by  an  explicit  direction  that 
certain  money  shall  be  laid  out  in  land  and  settled  on  A.  in 
fee,  the  money  is  descendible  at  once  upon  the  testator's  death, 
with  the  usual  incidents  of  real  estate  tenure. •♦  In  either  case, 
the  death  of  the  surviving  legatee  or  devisee,  before  an  actual 
conversion  takes  place,  and  before  the  administration  is  com- 
pleted and  the  claims  of  creditors  disposed  of,  causes  a  devolu- 
tion of  title  as  between  his  personal  or  real  representatives, 
according  to  the  character  impressed  upon  the  property  by  the 
testator's  will.  But  an  intended  postponement,  or  an  option  or 
discretion  conferred  by  the  will  upon  the  executors,  should  post- 
pone the  constructive  conversion  to  the  time  when  conversion, 
by  sale  or  otherwise,  actually  takes  place.'     There  may  be  an 

'  Smith  V.  First  Presby.  Church,  26  Smith  v.  First  Presby.  Church,  26  N.  J. 

N.   J.   Eq.  132;  Hammond  ?'.  Putnam,  Eq.  132;   Phelps  v.  Pond,  23  N.  Y.  69; 

no    Mass.    235;    Phelps   v.    Pond,    23  Craig  !■'.  Leslie,  3  Wheat.  562. 

N.  Y.  69.  "  Bramhall  v.  F"erris,   14  N.   Y.  41  ; 

^Hammond   v.    Putnam,    no  Mass.  Phelps  p.  Pond,  23  N.  Y.  69;  Dodson 

232,  and  cases  cited.  v.  Hay,  3  Bro.  C.  C.  404 ;  Wms.  Exrs. 

^  Johnson   v.   Woods,   2   Beav.  409 ;  658,  and  Perkins's  note. 

CoUier  v.  Collier,  3  Ohio  St.  369 ;  Mor-  ^  Bective  v.  Hodgson,  10  H.  L.  Cas. 

ton,   J.,  in   Hammond  v.  Putnam,  no  667;  De  Beauvoir,   Re,   3   H.   L.   Cas. 

Mass.  36;   I    Jarm.  Wills,  3d  Eng.  ed.  524. 
549 ;  Wms.   Exrs.  662,  Perkins's  note ; 


§    2l8  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

equitable  interest  in  land  which  passes  to  the  executor  or  ad- 
ministrator and  is  assignable  by  him.' 

§  218.    Character    of    Property    at    Owner's    Death;     lustances ; 
Contract   to    Sell;   Land   Damages;   Fire-insurance    Money,  etc. — 

Where  a  deed  executed  by  the  vendor  of  real  estate  is  held  by 
some  third  person  as  an  escrow,  to  be  delivered  upon  the  pay- 
ment of  an  unpaid  balance  of  the  purchase-money,  the  death 
meantime,  of  the  vendor  will  cause  the  estate  to  descend  to  the 
heirs,  subject  to  the  vendee's  equitable  right  to  a  conveyance.' 
A  contract  for  the  sale  of  land  passes,  as  a  beneficial  right  for 
enforcement,  to  the  executor,  as  between  him  and  the  heir  or 
devisee,  for  it  is  personalty ;  ^  while  the  estate  to  the  land  vests, 
in  equity,  in  the  vendee,  and  in  case  of  the  latter's  death  goes 
to  his  heirs,  and  not  to  the  personal  representative.''  Where  a 
testator  devises  land,  to  which  he  still  holds  the  legal  title,  but 
which  he  has  sold,  giving  to  the  purchaser  a  bond  for  a  deed, 
the  purchase-money,  when  paid  by  the  purchaser,  will  belong  to 
the  devisee.5 

Damages  assessed  in  favor  of  land  taken  for  pubUc  uses,  be- 
fore the  owner's  death,  though  not  made  payable  until  after  his 
death,  pass  as  assets  to  the  executor  or  administrator ;  but  oth- 
erwise, if  the  land  was  not  taken  until  after  the  owner's  death. ^ 
So,  if  a  person  sells  real  estate  and  dies  afterwards,  that  portion 
of  the  purchase-money  which  remains  unpaid  must  be  treated 
as  personal  property  and  assets,  however  the  same  may  have 
been  secured.^ 

Insurance  money  paid  to  the  heirs  on  a  fire  insurance  of  the 
decedent's  real  estate,  the  buildings  being  burned  after  his  death, 

'  Atkinson  v.  Henry,  80  Mo.  670.  win  v.   Milton,  25   N.  H.  458;  Neal  v. 

*  Teneick  v.   Flagg,   29   N.   J.   L.  25.  Knox  R.  Co.,  61  Me.  298. 

Escrows  are  to  be  respected.     See  i  B.  '  Loring  v.  Cunningham,  9  Cush.  87  ; 

&  Aid.  606.  Henson    v.    Ott,    7    Ind.    512;    Everit, 

'  Moore  v.    Burrows,   34    Barb.    173;  Matter  of,  2  Edw.  597;  Sutter  v.  Ling, 

Williams  z/.  Haddock,  145  N.  Y.  144.  25    Penn.    St.   466.     Where    one  dies 

*■  lb. ;  Champion  v.  Brown,  6   John,  having  an  interest  in  mortgaged  land 

Ch.  398.  sold  under  proceedings  in  partition,  such 

'  Wright  V.  Minshall,  72  111.  5.S4.  interest   being   vested,  is   not   real  but 

'•   Astor    V.     Hoyt,     5     Wend.    603;  personal   estate.     Jacobus  v.   Jacobus, 

Welles  V.  Cowles,  4  Conn.  182  ;  Good-  37  N.  J.  Eq.  17. 

304 


CHAP.   I.]  ASSETS    OF    AN    ESTATE.  §219 

vests  in  the  heirs,  Uke  the  realty,  and  constitutes  no  part  of  the 
ordinary  personal  assets  of  the  deceased.'  But  if  the  buildings 
were  burned  while  the  decedent  was  alive,  any  claim  for  unpaid 
insurance  money  should,  on  principle,  constitute  assets  for  the 
personal  representative  to  collect  and  administer  upon. 

§  219.  Gifts  Causa  Mortis,  etc.,  as  affecting  Question  of  Assets. 
— -  A  gift  of  personal  property  causa  mortis,  which  differs  from 
ordinary  gifts  in  being  made  with  an  anticipation  of  imminent 
death,  and  constituting  a  sort  of  ambulatory  disposition  by  de- 
livery, without  the  essential  formalities  of  a  will,  carries  two 
distinct  consequences,  when  fully  executed  and  followed  by  the 
donor's  death :  one  with  respect  to  the  donee  himself,  the  other 
as  concerns  creditors  of  the  estate.  As  concerns  the  donee, 
his  title  is  derived  directly  from  the  donor  and  not  from  the 
donor's  executor  or  administrator ;  consequently,  the  assent  of 
such  representative  after  the  donor's  death  is  not  in  any  way 
essential  to  the  donee's  title,  nor  has  the  executor  or  adminis- 
trator any  claim  whatever  upon  the  property  for  the  ordinary 
purposes  of  administration  and  the  claims  of  distributees.^  At 
the  same  time  the  executor  or  administrator  of  an  alleged  donor 
has  corresponding  rights  against  all  persons  retaining  property 
of  the  deceased  under  the  fictitious  claim  of  donees  causa  mortis, 
and  it  is  his  duty  to  dispossess  them.^  But  with  regard  to  the 
donor's  creditors,  the  universal  principle  is,  as  in  the  case  of 
gifts  inter  vivos,  that  the  transfer  shall  not  be  allowed  to  defeat 
the  just  claims  of  creditors  ;■♦  and  accordingly,  upon  an  utter 
deficiency  of  assets  to  pay  the  lawful  claims  of  creditors,  any 
gift  causa  mortis  must  give  way  so  far  as  may  be  requisite  to 
discharge  lawful  demands.^ 

'  Wyman  v.  Wyman,   26  N.  Y.  253;  ^  Egerton  v.    Egerton,    17  N.  J.  Eq. 

Harrison    v.    Harrison,    4    Leigh,    371.  419. 

As  to  owners  subject  to  life  estate,  see  ^  2  Bi.  Com.  514;  2  Kent  Com.  448; 

42  Hun  (N.  Y.)  423.  Dig.  39,  6,    17;  2   Schoul.   Pers.   Prop. 

*  2  Schoiil.  Pers.  Prop.  §  193;  Gaunt  §  193. 

t'.  Tucker,  18  Ala.  27  ;  Michenerz'.  Dale,  *  Dniry  v.  Smith,   i    P.  Wms.  406; 

23  Penn.  St.  59;  Westerlo  z/.  De  Witt,  Ward   v.    Turner,    2    Ves.    Sen.    434; 

36  N.  Y.  340.    See  Wadsworth  v.  Chick,  Michener   v.    Dale,    23    Penn.    St.   59  ; 

55  Tex.  241.  Chase  t/.  Redding,  13  Gray,  41S;  Borne- 
20                                              305 


§   220  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

§  2iga.  Effect  of  Insolvency;  Equitable  Assets. —  The  effect 
of  decreeing  in,solvency  in  a  decedent's  estate  is  merely  to  de- 
termine the  status  of  the  estate  and  to  bring  the  exclusive  ad- 
justment of  legal  claims  for  the  just  benefit  of  creditors  into 
the  probate  court ;  it  does  not  affect  the  right  to  assert  in  a 
court  of  equity  an  equitable  title  to  property  whose  legal  title 
was  in  the  decedent  during  his  lifetime.' 

§  220.  Assignment,  Gift  or  Transfer  by  the  Decedent,  to  be 
avoided  if  Fraudulent  as  against  his  Creditors.  — -  Any  gift,  assign- 
ment, conveyance,  or  transfer  of  property  within  the  statute 
13  Eliz.  c.  5,  and  analogous  legislation,  is  void  against  creditors; 
and,  consequently,  it  becomes  the  duty  of  a  personal  represen- 
tative to  procure  the  property  by  instituting,  on  their  behalf, 
appropriate  proceedings,  considering  the  means  of  litigation  at 
his  disposal  and  the  proof  obtainable.-  So,  too,  the  personal 
representative  may  and  should  resist  the  collection  of  a  note  or 
demand  against  the  estate,  grounded  upon  a  fraudulent  transfer 
by  the  deceased.^  Generally  speaking,  property  which  has  been 
assigned  or  conveyed  by  the  deceased,  after  the  manner  of  a 
gift,  confers  a  title  upon  the  donee  or  grantee,  subject  to  the 
lawful  demands  of  prior  existing  creditors  of  the  estate.  The 
executor  or  administrator,  representing  these  and  other  interests 
against  the  express  or  implied  wishes  of  the  deceased  himself, 
if  need  be,  may  and  ought  to  procure  all  assets  suitable  for  dis- 
charging demands  of  this  character.      But  if  any  balance  is  left 


man   v.    Sidlinger,    15    Me.  429.     The  sometimes  been  disputed  whether  the 

general   topic  of  gifts  ca7esa  mortis,  is  executor  or  admimstrator  of  an  insol- 

fully  treated  in  2   Schoul.   Pers.   Prop,  vent  donor  can  set  aside  the  gift ;  but 

§§  135-198.     And  see  Wms.  Exrs.  770-  it     is     clear    that    the    creditors    can 

783.     A  deposit  of  personalty  in  one's  pursue  their  own   remedies,   in   which 

life,  which   is   purely    ambulatory    and  case  the  personal  representative  of  the 

creates  no  valid  trust  by  way  of  gift  be-  deceased  is  a  proper  party,  so  that  the 

longs  to  the  executor  or  administrator  property  when  recovered  may  go  in  a 

as  assets.     Gilman  v.  McArdle,  12  Abb.  course  of  administration,     i  Am.  Lead. 

N.  Cas.  414.  Gas.  43;  2  Schoul.  Pers.  Prop.  §§  iii- 

'  Long  V.  King,  117  Ala.  423.  123;  Blake  v.  Blake,  53  Miss.  183. 

^  Wms.  Exrs.  1679,  and  note  by  Per-         ^  Cross   v.   Brown,    51    N.    H.   486; 

kins;  Martin  v.    Root,    17    Mass.  222;  Welsh  v.  Welsh,  105  Mas.s.  229.     See, 

Preston  v.  Cutter,  65  N.  II.  85.     It  has  also,  Gilman  r'.  McArdle,  99  N.  Y.  451. 

306 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  221 

over,  it  goes,  not  to  the  next  of  kin,  but  to  the  donee ;  for  the 
revocation  of  any  gift  for  the  benefit  of  creditors  of  the  decedent 
is  only/;f  tanto.^ 

The  personal  representative's  right  and  duty  to  have  a  fraud- 
ulent transfer  set  aside,  may  extend  to  proceedings  by  bill  in 
equity  to  reach  real  estate  thus  fraudulently  conveyed  ;  so  far, 
at  least,  as  the  interests  of  creditors  may  require  real  property 
to  be  reached  for  the  satisfaction  of  debts  and  the  fulfilment  of 
the  duties  of  administration,  without  conflicting  with  the  main 
principle  upon  which  voluntary  conveyances  are  treated,  as 
within  the  statute  prohibition  above  referred  to  ;  and  subject,  of 
course,  to  the  rule  which  exhausts  the  personal  assets  first. ^ 
Questions  of  this  character  properly  concern  the  settlement  of 
the  estates  of  those  who  die  insolvent.  As  a  general  rule,  what- 
ever the  decedent  has  fully  given  away  without  expectation  of 
repayment,  is  not  due  the  estate  as  assets.^ 

§  221.   Equitable  Assets  as  distinguished  from  Legal  Assets. — 

The  English  law  of  administration  has  taken  some  pains  to  dis- 
criminate between  legal  assets  and  equitable  assets  of  an  estate  ; 
referring  to  the  latter  head,  such  assets  as  are  liable  only  by 
the  help  of  a  court  of  equity,  and  not  recognized  as  assets  at 
law.  The  point  of  the  distinction  lies  in  this  :  that  courts  of 
equity  disapprove  those  rules  of  priority  among  creditors  which 
were  early  established  by  the  common-law  tribunal,  and  ranked 
all  debts  alike,  whether  founded  in  specialty  or  simple  contract, 

'  McLean   v.    Weeks,    6i    Me.    277  ;  tice,  in  other  words,  as  to  gifts  inter 

Abbott  V.  Tenney,  18  N.  H.  109;  Reade  7>ivos  follows  the  course  so  frequent  in 

V.    Livingston,    3    Johns.    Ch.    481  ;    2  the  essentially   distinct    case  of   a  gift 

Schoul.  Pers.  Prop.  §§  111-123;  Burtch  causa  mortis,  namely,  to   permit  the  ex- 

V.  Elliot,  3  Ind.  100.     But  the  expenses  ecutor  or  administrator,  as  quasi  repre- 

of  administration  should    be  defrayed  sentative  of   the  creditors,   to   recover 

out  of  the  fund  before  the  donee  can  the  property  or  its  value  to  the  extent 

claim  a  balance.     McLean  v.  Weeks,  requisite.    lb.     As  to  avoiding  as  fraud- 

supra;  Bassett  v.  McKenna,  52   Conn,  ulent  the  assignment  of  a  life  policy  by 

437.     An  action  by  a  representative,  to  the  decedent,  see  Spooner  v.  Hilbish, 

recover  money  alleged  to  have  been  ob-  92  Va.  t,^^. 

tained  under  a  lease  assigned  the  de-  -  Wms.  Exrs.  1679,  i68o;  3  B.  &  Ad. 

fendant  by  the  decedent  in  fraud  of  his  362. 

creditors,  is  cognizable  at  law.     Doe  v.  '  See  Kelsey  v.  Kelley,  63  Vt.  41. 
Clark,  42   Iowa,    123.     Our  local  prac- 


§   221  EXECUTORS    AND    ADMINISTRATORS.  [pART  III. 

this  being  most  consonant  to  natural  justice.'  To  stretch  judi- 
cial power  arbitrarily,  however,  in  order  to  further  ends  which 
it  lies  rather  within  the  province  of  legislation  to  accomplish,  is 
incompatible  with  American  rules  of  procedure ;  and  American 
courts  of  equit)'  rarely,  if  ever,  enforce  such  a  distinction  ;  the  old 
rules  of  priority  having,  instead,  been  altered  by  suitable  enact- 
ments in  most  parts  of  the  United  States,  or  else  rendered  as 
tolerable  as  possible  by  being  administered  with  uniformity.-' 
In  England,  moreover,  the  chancery  courts  appear  to  have 
abated  some  of  their  former  pretensions  in  this  respect,  by  con- 
ceding latterly,  though  not  without  reluctance,  that  an  equity 
of  redemption  in  chattels,  real  or  personal,  constitutes  assets  at 
law  in  the  hands  of  the  executor  or  administrator  for  whatever 
it  is  wortli  over  and  above  the  security  ;3  or  in  other  words, 
that  whatever  devolves  in  title  upon  the  executor  or  administra- 
tor, by  \'irtue  of  his  office,  shall  be  treated  as  legal  assets.* 
But  with  regard  to  such  property  of  the  deceased  as  consists  of 
the  proceeds  of  the  sale  of  real  estate,  the  English  rule  appears 
to  settle  that  such  proceeds  are  equitable  and  not  legal  assets; 
though  there  has  been  some  question  whether  devises  of  land  to 
executors  for  sale,  or  for  the  payment  of  debts  and  legacies,  im- 
press the  proceeds  with  the  character  of  equitable  assets.'  It  is 
ruled  conformably  to  the  main  distinction,  that,  where  assets  are 
partly  legal  and  partly  equitable,  equity  cannot  take  away  the 
legal  preference  on  legal  assets,  and  yet  may  postpone  a  creditor 
who  has  been  partly  paid  out  of  the  legal  assets,  so  as  to  make 
an  equal  satisfaction  out  of  the  equitable  assets  for  all  the  credi- 
tors.^ In  the  United  States,  and  apparently  in  England,  also, 
the  better  rule  is  that  a  right  of  equity  of  redemption  in   prop- 


'  W^ms.   Kxrs.  1680-1685.  '  Clay  v.  Willis,  i  B.  &  C.  364  ;  Bain 

'  See  §  417  as  to  payment  of  debts;  v.   Sadler,   L.    R.    12    Eq.   570 ;    Wms. 

Sperry,  Estate  of,  i  Ashm.  347.  Exrs.  1684.     Contra,  Girling  v.   Lee,  i 

'  Wms.  Exrs.   1682;  Sharpe  7\  Scar-  Vern.  63.     A  debt  for  money  loaned  by 

borough,   4  Ves.   541;  Wison  z/.  Field-  the  representative  under  a  power  in  the 

ing,  2  Vern.  763.     Contra,  Cox,  Credi-  will  secured  by  mortgage  of  real  estate 

tors  of,   3    P.  Wms.   342  ;  Hartwell  v.  is  in  equity  regarded  as  personal  assets. 

Chitters,  Ambl.  308.  Dunham  v.  Milhouse,  70  Ala.  596. 

■•  Story  Eq.  Jur.  §  551  ;   Wms.  Exrs.  ''  Chapman  v.  Ksgar,  i  Sm.  &  G.  575- 
1682;  Cook  V.  (jregson,  20  Jur.  510. 

308 


CHAP.  I.] 


ASSETS  OF  AX  ESTATE. 


§  222 


erty,  real  or  personal,  should  be  treated  as  assets  available,  like 
any  other  legal  assets  of  the  estate  ; '  if,  indeed,  the  distinction 
between  legal  and  equitable  assets  be  tenable  at  all. 

§  222.  Assets  -where  Property  is  appointed  under  a  Power. — 
Where  a  person  has  a  general  power  of  appointment,  either  by 
deed  or  by  will,  and  executes  that  power,  the  property  appointed 
is  deemed  in  equity  part  of  his  assets,  and  rendered  subject  to 
the  demands  of  his  creditors  in  preference  to  the  claims  of  his 
voluntary  appointees  or  legatees." 


'  4  Kent  Com.  162  ;  Cook  v.  Greg- 
son,  20  Jur.  510,  per  Kindersley,  V.  C. 
Such,  after  all,  is  the  judicial  inclination 
not  to  violate  general  rules  for  the  set- 
tlement of  estates,  that  later  English 
chancery  cases  appear  compelled  to 
draw  the  distinction  between  legal  and 
equitable  assets  into  a  fine  thread. 
Thus,  Kindersley,  V.  C,  observes,  in 
Shee  V.  French  (3  Drew.  716),  that  the 
question  whether  assets  are  legal  or 
equitable  depends  on  this :  whether,  if 
the  case  were  before  a  court  of  law,  on 
an  issue  of  plefie  administravit,  that 
court  would  treat  the  property  as  assets  ; 
for  the  principle  on  which  a  court  of 
law  proceeds  is  to  inquire  whether  the 
property  came  to  the  hands  of  the  ex- 
ecutor virtuie  officii  ;  if  it  did,  the  court 
of  law  regards  it  as  assets  applicable  to 
the  payment  of  the  testator's  debts,  and 
then  the  court  of  equity  treats  it  as  legal 
assets. 

^  "The  rule  perhaps  had  its  origin," 
observes  Gray,  C.  J.,  in  a  recent  Massa- 
chusetts case,  "  in  a  decree  of  Lord 
Somers,  affirmed  by  the  House  of  Lords, 
in  a  case  in  which  the  person  executing 
the  power  had  in  effect  reserved  the 
power  to  himself  in  granting  away  the 
estate.  Thompson  v.  Towne,  Prec.  Ch. 
52  ;  s.  c.  2  Vern.  319.  But  Lord  Hard- 
wicke  repeatedly  applied  it  to  cases  of 
the  execution  of  a  general  power  uf  ap- 
pointment by  will  of  property  of  which 


the  donee  had  never  had  any  ownership 
or  control  during  his  life ;  and  while 
recognizing  the  logical  difficulty  that 
the  power,  when  executed,  took  effect 
as  an  appointment,  not  of  the  testator's 
own  assets,  but  of  the  estate  of  the 
donor  of  the  power,  said  that  the  pre- 
vious cases  before  Lord  Talbot  and 
himself  (of  which  very  meagre  and  im- 
perfect repots  have  come  down  to  us) 
had  established  the  doctrine,  that  when 
there  was  a  general  power  of  appoint- 
ment, which  it  was  absolutely  in  the 
donee's  pleasure  to  execute  or  not,  he 
might  do  it  for  any  purpose  whatever, 
and  might  appoint  the  money  to  be  paid 
to  his  executors  if  he  plea.sed,  and,  if  he 
executed  it  voluntarily  and  without  con- 
sideration for  the  benefit  of  third  per- 
sons, the  money  should  be  considered 
part  of  his  assets,  and  his  creditors 
should  have  the  benefit  of  it."  Clapp 
7'.  Ingraham,  126  Mass.  200,  202,  citing 
Townshend  71.  Windham,  2  Ves.  Sen.  1  ; 
Caswall,  Ex  parte,  i  Atk.  559,  560; 
Pack  V.  Bathust,  3  Atk.  269.  "The 
doctrine,"  adds  Gray,  C.  J.,  "has  been 
upheld  to  the  full  extent  in  England 
ever  since."  lb.,  citing  Fleming  v. 
Buchanan,  3  De  G.  M.  &  G.  976 ;  2 
Sugd.  Powers,  7th  ed.  27.  Although 
the  soundness  of  the  reasons  on  which 
the  doctrine  rests  has  .since  been  im- 
pugned arguendo  by  Gibson,  C.  J.,  and 
doubted  by  Mr.  Justice  Story  (see  Story 


309 


§    223  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

§  223.  Chattels  Real  as  Assets;  Leases,  etc. —  Inasmuch  as 
the  personal  but  not  the  real  estate  of  the  decedent  vests  as 
assets  in  his  executor  or  administrator,  a  clear  idea  should  be 
retained  of  the  peculiar  discrimination  which  our  common  law 
makes  between  these  two  grand  classes  of  property.  Mobility 
and  immobility  appear  to  be  the  fundamental  test  in  all  systems 
of  jurisprudence  ;  but  at  the  common  law  there  was  the  free- 
hold estate  in  lands,  which  might  be  either  one  of  inheritance 
or  for  life,  while  to  all  inferior  interests  and  movables  proper 
was  applied  the  term  "chattel"  ;  so  that  personal  property  at 
our  law  has  been  essentially  property  the  residuum  of  the  free- 
hold, and  divided  into  chattels  real  and  chattels  personal.'  Chat- 
tels real  vest  consequently  in  the  executor  or  administrator  of  the 
lessee,  whether  as  a  valuable  beneficial  and  assignable  interest, 
which  maybe  disposed  of  at  a  profit,  or  as  involving  rather  a  bur- 
densome obligation  to  be  discharged  out  of  the  decedent's  estate. 
Of  chattels  real  the  only  important  one  in  modern  times  is  the 
lease.^  The  good-will  of  an  established  business  and  a  lease- 
hold interest  go  often  together  as  valuable  assets.^  So,  too, 
the  good-will  of  a  renewal  of  the  lease  should,  if  valuable,  be 
included.'*     As  assets,  leases  have,  however,  peculiar  incidents. 

Rent  may  issue  out  of  lands  and  tenements,  or  it  may  be 

Eq.  Jur.   §  176,  and  note),  it  has  been  see  for  life  holds  an  estate  pur  auter 

considered  well  settled  in  the   United  vie,  which,  by  our  statute,  is  a  freehold 

States.     Clapp  v.  I ngraham,  i-?^/r«;  4  during  the  assignee's  life;  but  on  his 

Kent  Com.  339,340;  Johnson  57.  Cush-  death  a  chattel  real  and  assets  in  the 

ing,   15   N.   H.  298;  Commonwealth?/,  hands  of  his  administrator.     Mosher  z/. 

Duffield,    12    Penn.    St.    277,    279-281.  Youst,   t^t,   Barb.    277.     An   estate  for 

See,  also,  Wms.  Exrs.  16S6.  another's   life,    which    at   common  law 

'  I    Schoul.   Pers.  Prop.  §§  6,  7  ;  2  Bl.  fell  on  the  grantee's  death  to  the  first 

Com.  385,   386;  Wms.   Exrs.  670-690.  person  who  could  get  it,  is  affected  by 

^  Murdock  v.   Ratcliff,  7   Ohio,  119;  stat.  29  Car.  II.  c.  3,  §  12,  which  favored 

Wms.  Exrs.  674  ;   i  Schoul.  Pers.  Prop,  treating   it    as    a.ssets  of  the  grantee's 

§  20;   Lewis  V.  Ringo,  3  A.  K.  Marsh,  estate.     It  may  be  disposed  of  by  will, 

(Ky.)   247;  Thornton  v.   Mehring,    117  however,  under  .stat.   i  Vict.  c.  26,  §3. 

111.  55.     Chattels  personal,  upon  which  See  Wms.  Exrs.  681,  682. 
the  term  "  personal  j^roperty  "  is  more         ^  Wiley's  Appeal,  8  W.  &  S.  244. 
commonly  bestowed,  have  already  been         ^  Green  v.  Green,   2    Redf.    (N.    Y.) 

considered.     See,  al.so,  as  to  the  English  408.     Where  a  lessee  hired  premises  by 

attendant  terms  of  years,  mortgaged  for  parol  agreement,  a  lease  being  drawn 

family   trust    arrangements,    1    Schoul.  \\\>  but  not  signed,  and  entered  before 

Pers.  Prop.  §  43.     The  assignee  of  a  les-  his  death,  and  made  valuable  improve- 

310 


CHAP.  I.]  ASSETS  OF  AN  ESTATE  §  225 

paid  in  consideration  of  real  and  personal  property  blended,  as 
where  a  furnished  house  is  let,'  If  the  administrator  of  a  de- 
ceased tenant  takes  possession  of  a  leased  estate  and  continues 
on  under  the  terms  of  the  lease,  the  profits  of  the  land,  it  is 
said,  are  first  liable  for  the  payment  of  the  rent,  and  only  what 
remains  can  constitute  assets  of  the  estate.^  This  rule  appears 
an  equitable  one.  But  under  the  New  York  statutes  it  is  held 
that  where  one  dies  holding  leases  upon  which  arrears  of  rent 
are  due,  and  there  were  also  certain  sums  due  him  for  storage 
of  goods  on  the  leased  premises,  assets  exist  to  be  applied  among 
creditors  without  any  preference  in  favor  of  the  lessor.^ 

§  224.  Chattels  -wrhich  come  by  Remainder  as  Assets.  —  Chat- 
tels which  never  vested  in  possession  in  the  testator  may  never- 
theless come  to  his  executor  by  remainder  as  assets ;  as  if  a 
lease  should  run  to  A.  for  life,  with  remainder  to  his  executor 
for  years.'* 

§  225.  Things  on  the  Border-Line  of  Real  and  Personal;  Rule 
of  Assets  applied  to  Heirlooms.  —  Finally  we  come  to  things  at 
the  border-line  which  separates  real  estate  and  personal  or  chat- 
tel property  at  the  common  law.  The  three  classes  here  notice- 
able are  (i)  heirlooms,  (2)  emblements,  and  (3)  fixtures. 

Heirlooms  are  not  favored  in  American  law ;  and  so  far  as 

ments,  the  lease  is  enforceable  in  equity,  "  The  cases  on  the  subject  of  a  lease 

and  should  therefore  be  deemed  an  as-  devolving  on  an  executor,  where  the  rent 

set  for  the  whole  term.     lb.  reserved  exceeds  the  value  of  the  prem- 

A    lease   for    ninety-nine  years    is    a  ises,  are  involved  in  some  difficulty.     I 

chattel    real    (in    absence    of    statute  think,  however,  upon  the  authorities,  as 

changes),  and  constitutes,  on  the  lessee's  well   as  on  principle,  that,    where   the 

death,  assets  for  administration.     Faler  rent  reserved  exceeds  the  value  of  the 

V.  McRae,  56  Miss.  227.  premises,  an  executor,  in  the  character 

'  Mickle  z/.  Miles,  i   Grant  (Pa.)  320,  of  assignee,  is  Hable  to  the  extent  of  such 

328, /^r  Lowrie,  J.     See  supra,  §   216,  value  ;  and,  where  the  value  exceeds  the 

as  to  rent.  rent    reserved,   to   the   extent  of   such 

^  Mickle  V.  Miles,  i  Grant  (Pa.)  320.  rent."     Mr.  Justice  Maule  in  6  C.   B. 

^  Harris  v.  Meyer,  3   Redf.   (N.    Y.)  756;  Bowes,  Re,  37  Ch.  D.  128. 

450.     See  post.  Part  IV.,  as  to  the  pe-  ■*  Com.   Dig.  Assets  C  ;   Wms.  Exrs. 

culiar  rights  and  liabilities  of  the  per-  1658. 
sonal  representative  with  reference  to 
chattels  real. 


§   226  EXECUTORS    AND    ADMINISTRATORS.  [pART   111. 

such  things  cannot  be  treated  as  strict  fixtures,  their  title  seems 
to  have  been  excepted  from  the  ordinary  rules  of  devolution 
upon  death,  out  of  favor  to  the  heir,  in  accordance  with  some 
local  custom  which  gratified  family  pride.'  The  armor  and  in- 
signia of  an  ancestor,  family  portraits,  crown  jewels,  and  the 
like,  come  within  the  principle  of  this  exception.  According  to 
Coke,  articles  of  less  dignity,  like  the  best  bed,  table,  pot,  pan, 
and  cart,  might  go  in  this  manner ;  and  out  of  regard  to  a  sort 
of  connection  with  the  freehold,  if  not  annexation,  which  they 
bore,  keys,  title-deeds,  and  other  muniments  of  the  inheritance, 
together  with  the  chest  containing  them,  went  also  to  the  heir.^ 
To  all  this  curious  learning  American  courts  pay  little  heed  ; 
but  whatever  may  be  pronounced  heirlooms  go  with  real  estate 
to  the  heir,  and  the  executor  or  administrator  cannot  treat  them 
as  assets  more  than  the  real  estate  itself.  Indeed,  it  is  held 
that  though  the  owner  might  have  disposed  during  life  of  chat- 
tels which  would  otherwise  descend  as  heirlooms,  he  cannot  de- 
vise or  bequeath  them  by  his  will,  but  they  shall  vest  in  the  heir 
on  the  instant  of  the  donee's  death.^ 

§  226.  Rule  of  Assets  applied  to  Emblements.  —  Next,  as  to 
"  emblements,"  a  word  associated  with  chattels  vegetable  and 
growing  crops.  Here  the  rule  is,  that  when  the  owner  of  real 
estate  dies,  trees  and  their  fruit  and  produce,  if  hanging  on  the 
trees  at  the  time  of  his  death,  also  hedges  and  bushes,  go  to  the 
heirs  and  not  to  the  executor  or  administrator  ;  the  reason  be- 
ing that  they  are  part  of  the  real  estate  and  not  chattels.'*  But 
out  of  favor  to  agriculture,  and  to  aid  the  intentions  of  one  who 
has  bestowed  labor  upon  a  crop  which  by  reason  of  some  unfore- 
seen contingency  is  beyond  his  control,  the  unsevered  property 
is  sometimes  treated  as  though  already  severed  ;  a  rule  which 

'  I    Schoul.   Pers.   Prop.  §  95 ;   2    Bl.  1  Schoul   Pers.  Prop.   §  99.     The  topic 

Com.  427  ;  Wms.  Pers.  Prop.  5th  Eng.  of  heirlooms  is   discussed  at  lengUi  in 

ed.  12.  I  Schoul.  Pers.  Prop.  §§  95-99. 

*  lb.;  Co.  Jit.  18  b;    Upton  t\  Lord  "  i  Schoul.  Pers.  Prop.  §  102;  Swinb. 

Ferrers,    5    Ves.    806;    Harrington    v.  pt.  7,  §    10,    pi.  8;   Wms.    Exrs.    707; 

Price,  3  B.  &  A.  170;  Alhvood  v.  Hey-  Rodwell  v.   Phillips,  9   M.  &  W.  501 ; 

wood,  II  W.  R.  291.  Maples  z/.  Milton,  31  Conn.  598. 

^  Tipping  z'.  Tipping,  i  P.  Wms.  730; 

312 


CHAP.    I.]  ASSETS    OF    AN'    KSTAT?:.  §    2  26 

obtains  with  much  force  as  between  tenant  and  landlord,  where 
the  tenancy  has  suddenly  determined  by  act  of  God  or  the  act 
of  the  law.'  If  an  owner  sows  his  land,  and  then  conveys  it 
away,  he  passes  the  title  to  growing  crops  as  well  as  the  soil, 
and  his  executors  and  administrators  have  no  concern  in  either.^ 
So,  too,  one's  devise  of  land  carries  presumptively  the  growing 
crops. ^  Crops  of  the  year  not  actually  sown  or  planted  by  the 
decedent  do  not  come  within  the  benefit  of  the  rule  of  emble- 
ments ;  ■♦  nor,  as  a  rule,  growing  clover  or  grass,  which  is  a 
natural  product  of  the  soil  renewed  from  year  to  year.5 

But  as  to  grain,  corn,  potatoes,  or  any  other  product  of  the 
soil  which  is  raised  annually  by  labor  and  cultivation,  and  re- 
turns periodical  profit  only  by  periodical  planting,  the  labor 
bestowed  affords  reason,  on  the  casualty  of  death  happening, 
for  application  of  the  rule  of  emblements ;  hence,  such  growing 
crop  of  a  decedent  goes  as  personal  assets  to  his  executor  or 
administrator,  and  not  with  the  title  to  the  land.^  But  with 
crops  planted  and  grown  after  the  death  of  the  owner,  adminis- 
tration has  nothing  to  do.^ 

Where  one  grants  away  trees  growing  on  the  soil,  they  go  to 
the  grantee's  executor  or  administrator  whether  felled  or  not ; 
and  where  one  grants  land  with  express  reservation  of  the  trees, 
the  trees  go  to  the  grantor's   executor  or  administrator;   for 

'  I  Washb.  Real  Prop.  104  et  seq.;  i  Humphrey    v.    Merritt,    51    Ind.    197; 

Schoul.  Pers.  Prop.  §  106.  Wadsworth  v.    Allcott,    6    N.    Y.   64; 

^  I    Schoul.    Pers.    Prop.    §   loi  ;    i  Thornton  z/.  Burch,  20  Ga.  791  ;  Single- 

Washb.  Real  Prop.  104;   Footer.  Col-  ton  v.   Singleton,   5    Dana,  92;    Wms. 

vin,  3  Johns.  216.  Exrs.  711  ;  Evans  v.  Roberts,  5  B.  &  C. 

^  Shofner  v.   Shofner,   5    Sneed,   94;  832;    Gwin   v.   Hicks,    i    Bay    (S.    C.) 

Fetrow  v.   Fetrow,   50  Penn.    St.   253.  503.     Local  statutes  are  found  on  this 

As  to  crops  growing  on  a  household  subject.      Green   v.    Outright,    Wright 

farm,  see  Budd  v.  Hiler,  27  N.  J.  L.  43.  (Ohio)  738;  Thompson  v.  Thompson, 

■•  Gee?'.  Young,  i  Ha5rw.  (N.  C.)  17;  6  Munf.  514.     While  an  administrator 

Rodman  v.  Rodman,  54  Ind.  444.  may  gather  the  crop  of  the  intestate,  he 

5  Kain  v.  Fisher,  6  N.  Y.  597  ;  Evans  is  not  obliged  to  do  so,  and  if  he  does 

V.  Inglehart,  6  Gill  &  J.  188;   i  Schoul.  not  it  is  not  assets  ;  and  if  the  widow 

Pers.  Prop.  §  105.    And  this  rule  appears  gathers  it,  it  is  hers  as  against  the  ad- 

rigidly  to  apply  even  though  the  natural  ministrator.     Blair  7/.  Murphree,  81  Ala. 

product  be  increased  by  actual  cultiva-  454.     If   he  gathers,  he  must  account 

tion.     lb.     But  see  Wms.  Exrs.  712.  strictly.     Perkins  7'.  Sturdivant  (Miss.). 

'■  Penhallow  v.   Dwight,   7    Mass.  34  ;         '  Kidwell  v.  Kidwell.  84  Ind.  224. 


§   22/  EXECUTORS    AND    ADMINISTRATORS.  [PART   lit. 

under  these  peculiar  circumstances  the  grant  itself  makes  a 
constructive  severance,  so  as  to  render  the  trees  transmissible 
as  personal  property.' 

§  227.  Rule  of  Assets  applied  to  Fixtures. —  Of  these  mixed 
things,  the  most  important  class  at  the  present  day  is  that  of 
"fixtures";  the  very  word,  now  so  common  in  legal  parlance, 
being  of  modern  origin  and  variously  defined,  but,  on  the  whole, 
signifying  chattels  annexed  in  a  manner  to  the  ground,  concern- 
ing which  the  right  to  remove  comes  in  controversy.  The  ob- 
ject and  purpose  of  the  annexation  must  be  considered  in  all 
cases  of  fixtures ;  and  the  law  is  more  or  less  liberal,  according 
as  it  appears  that  the  chattel  was  affixed  for  purposes  of  trade, 
for  purposes  of  ornament,  or  for  domestic  purposes.  In  order 
to  constitute  annexation  within  the  rule  of  fixtures,  the  article 
in  question  must  have  been  let  into  or  united  with  the  land  or 
to  substances  previously  connected  with  it;  for  mere  juxtaposi- 
tion, such  as  laying  a  pile  of  lumber  on  the  ground,  leaves  the 
lumber  mere  personal  property.^  Chattels  lying  on  the  ground, 
at  the  death  of  the  owner,  vest,  of  course,  in  his  executors  and 
administrators  as  personal  assets ;  while  the  land  itself,  and  per- 
manent erections  thereon,  go  to  the  heir  or  devisee.  But  an- 
nexation is  not  a  conclusive  test ;  since  there  are  things,  such 
as  doors,  blinds,  and  shutters,  which  pass  with  the  soil  or  build- 
ings, from  regard  to  their  own  nature  and  adaptation  to  the  pur- 
pose for  which  they  have  been  used,  though  so  slightly  annexed 
as  to  be  easily  removed ;  and  on  the  other  hand,  heavy  articles 
like  mirrors,  pictures,  and  wardrobes,  fastened  into  the  wall, 
which,  out  of  corresponding  regard,  are  to  be  treated  still  as 
chattels.^     Various  considerations  are  to  be  applied  in  determin- 

'  Hob.  173;  4  Co  6;^  b;  Wms.  Exrs.  property,  and  the  title  vests  in  the  per- 

708.     Co)itra   if   the   grantee   of   trees  sonal   representative  of   the   deceased, 

should  unite  thereto  the  purchase  of  the  Clark  v.  Burnside,  15  111.  62. 

land,  and  not  cut  the  trees.  4  Co.  63  b.  ^  Winslow  v.  Merchants'  Ins.  Co.,  4 

^  I    Schoul.  Pers.   Prop.  §§  11 1-129;  ^^t-  3 '4;   i  Schoul.  Pers.  Prop.  §  113; 

Amos  &  Fer.  Fixtures,  2,  3;  Elwes  v.  2   Smith  Lead.  Cas.  239,  251  ;  Hare  & 

Maw,  3  East,  32;  s.  c,  2  Smith  Lead.  Wall,   notes;   Sheen  v.  Rickie,  5  M.  & 

Cas.,  Am.  Notes,  228;  Wms.  Exrs.  72S  W.  175.     Manure  taken  from  the  barn- 

et  seq.      Rails   in   stacks   are   personal  yard  of  a  homestead  and  piled  upon  the 


<  IIAP.    I.]  ASSETS    OF    AN    ESTATE.  §   22/ 

ing  whether  the  right  to  take  away,  under  the  law  of  fixtures, 
shall  or  shall  not  be  granted  in  a  particular  case. 

To  classify,  however,  as  in  the  leading  cases  on  this  some- 
what abstruse  subject,  there  are  two  kinds  of  disputes  which  may 
concern  the  representative  of  a  deceased  person  :  first,  where 
controversy  arises  between  him  and  the  heir  or  devisee;  second, 
where  it  is  between  him  and  the  remainder  man  or  reversioner. 
As  to  disputes  of  the  first  kind,  the  cardinal  rule  is,  that  the 
right  to  fixtures  (presuming  the  person  to  have  died  who  an- 
nexed the  chattels)  shall  be  most  strongly  taken  in  favor  of  the 
heir  or  devisee  as  against  the  executor  or  administrator."  The 
"incidents  of  a  house,"  so  to  speak,  are  presumed  to  pass  with 
the  inheritance  ;  and  of  fixtures  employed  by  the  deceased  in 
trade,  encouragement  to  trade  is  not  a  doctrine  to  be  invoked 
for  the  mere  benefit  of  assets  and  administration.^  Concerning 
ornamental  fixtures,  the  rule,  though  anciently  strict  in  favor  of 
the  inheritance,  appears  to  have  relaxed,  latterly,  so  as  to  give, 
at  least,  hangings,  pictures,  and  mirrors  fastened  in  the  ordinary 
manner  and  easily  detached,  as  well  as  portable  furnaces,  stoves, 
and  ornamental  chimney-pieces,  to  the  personal  representative, 
as  chattels  personal  and  assets.^  In  some  parts  of  the  United 
States,  as  in  New  York,  the  legislature  gives,  on  behalf  of  the 
executor,  a  more  equal  presumption  in  such  controversy;"*  and 


land  is  part  of  the  realty,  and  does  not  affect  the  presumption  under  some  cir- 
go  to  the  personal  representative.  Fay  cumstances.  Wood  v.  Gaynon,  i  Ambl. 
V.  Muzzey,  13  Gray,  53;  Plumer  v.  Plu-  395;  Birch  v.  Dawson,  2  Ad.  &  El.  37. 
mer,  30  N.  H.  558.  Cf.  Aleyn,  32  ;  ^  lb. ;  Fisher  v.  Dixon,  13  CI.  &  Fin. 
Wms.  Exrs.  731.  312;  Amos  &  Fer.  Fixtures,  154  et  seq. 
'  I  Schoul.  Pers.  Prop.  §  119;  Shep.  'Squierz/.  Mayer,  2  Freem.  249;  Wms. 
Touch.  469,  470 ;  Colegrave  v.  Dias  Exrs.  732-739 ;  Beck  v.  Rebow,  i  P. 
Santos,  2  B.  &  C.  76;  Fay  v.  Muz-  Wms.  94 ;  i  Schoul.  Pers.  Prop.  §§  119, 
zey,  13  Gray,  53.  Hop-poles  in  use  125;  Blethen  v.  Towle,  40  Me.  310. 
for  growing  hops  at  the  time  of  the  But  a  heavy  stove  or  furnace  or  a  grate 
owner's  death  pass  with  the  real  estate,  so  set  into  the  house  as  not  to  be  readily 
Bishop  V.  Bishop,  11  N.  Y.  123.  The  removed  without  disturbing  brickwork 
same  favor,  it  appears,  should  be  ex-  and  masonry,  cannot  be  taken  by  the 
tended  to  a  devisee  as  to  an  heir;  administrator  as  against  the  heir.  Tut- 
though  the  discussion  arises  usually  with  tie  z/.  Robinson,  33  N.  H.  104;  Rex  ». 
reference  to  the  latter.  In  the  case  of  St.  Dunstan,  4  B.  &  C.  686. 
a  devisee,  however,  the  true  intention  "  2  Kent  Com.  345 ;  i  Schoul.  Pers. 
of  the  will  is  an  element   which  might  Prop.  §  119;  House ».  House,  10  Paige, 


§   227  EXECUTORS    AND    ADMINISTRATORS.  [PART   lit. 

as  the  kindred  to  take,  whether  by  descent  or  distribution,  are 
nearly  identical  in  this  country,  less  dispute  need  arise  than  in 
England,  where  the  inheritor  of  land  in  a  family  is  treated  with 
favor  in  various  ways.  When  such  disputes  exist,  the  usual  rule 
applies,  that  the  status  of  the  property  at  the  owner's  death 
must  determine  its  nature  and  the  consequent  devolution  of 
title.' 

As  between  the  executor  of  a  life  tenant  and  the  remainder 
man  or  reversioner,  the  common  law  appears  to  favor  the  soil 
rather  less,  and  the  representative  desiring  to  take  rather 
more ;  for  here  are  not  antagonizing  claims  of  title,  as  between 
realty  and  personalty,  but  the  landed  interest  of  one  under  a 
will  is  compared  with  that  of  another,  the  court  desiring  to 
carry  out  the  testator's  intent.  In  this  case,  to  do  full  justice 
to  the  estate  of  a  life  tenant,  erections  for  trade  as  well  as  do- 
mestic purposes  have  been  permissively  disannexed  on  the  life 
tenant's  death,  for  the  benefit  of  his  estate.  The  case,  though 
not  quite  so  strong  as  between  landlord  and  tenant  (to  use  Lord 
Hardwicke's  expression),  is  governed  by  the  same  reasons.^ 
But  where  chattels  remain  on  the  premises,  disannexed,  at  the 
death  of  one  tenant  for  life,  the  next  tenant  for  life  cannot  preju- 
dice or  affect  the  rights  to  vest  at  his  death,  by  attaching  them 
to  the  freehold. 3 


157.     Chandeliers,  gas-fixtures,    and  a  case   where    hop-poles     stood    in    the 

private  apparatus  for  generating  gas  will  ground  for  use  at   the  testator's  death, 

pass  to  the  heir,  it  is  held,  as  against  the  but   were  afterwards  taken  up  for  the 

executor  or    administrator.     Lawrence  purpose  of  picking  the  hops  and  heaped 

V.    Kemp,    I    Duer,    363 ;    Johnson    v.  in  the  yard. 

Wiseman,  4  Mete.  357  ;  Hays  v.  Doane,  ^  Lord  Hardwicke  in  Dudley  v. 
II  N.  J.  Eq.  84, 96, /^r  Williamson,  Ch.  Warde,  Ambl.  113.  See  also  i  H.  Bl. 
But  chandeliers,  brackets,  and  other  260,  n.;  Elwes  v.  Maw,  3  East,  54 ;  2 
things  readily  detachable,  and  sold  else-  Smith  Lead.  Cas.  245  ;  i  Schoul.  Pers. 
where,  are  certainly  not  part  of  the  Prop.  §  120;  Wms.  Exrs.  741-743. 
realty,  nor  presumably  sold  or  let  with  a  ^  D'Eyncourt  v.  Gregory,  L.  R.  3  Eq. 
house  under  all  circumstances;  alitcr,  382;  Norton  v.  Dashwood,  (1896)  2  Ch. 
as  it  seems,  with  the  running  gas  and  497.  Pews  in  church  are  by  the  corn- 
water  pipes,  in  controversies  of  the  pres-  mon  law  real  estate,  and  the  title  goes 
ent  kind.  See  Vaughen  v.  Ilaldeman,  accordingly  ;  but  in  some  States  they 
33  Penn.  St.  522 ;  Montague  v.  Dent,  are  made  personal  property  by  statute. 
10  Rich.  135.  1  Schoul.  Pers.  Prop.  §  132;  McNabb-'. 
'  Bishops^.  Bishop,  11   N.  V.  123,  is  a  Pond,  4  Bradf.    (N.    \ .)  7.     As  to  fix- 

316 


CHAP.  I.]  ASSETS  OF  AN  ESTATE.  §  228 

§  22"] a.  Rule  of  Assets  applied  to  Severance  of  Land  Prod- 
ucts, etc.  —  Trees  which  are  blown  down  to  such  an  extent  that 
they  cannot  grow  as  trees,  are  pronounced  assets  for  the  exec- 
utor, on  the  principle  of  severance  ;  while  trees  that  would  con- 
tinue to  grow,  but  must  be  cut  for  the  proper  cultivation  of  the 
grounds,  belong  to  the  life  tenant  under  the  will.' 

§  228.  Rule  as  to  Foreign  Assets. —  The  fundamental  principle 
upon  which  personal  property,  corporeal  or  incorporeal,  includ- 
ing rights  of  action,  whose  situation  is  in  some  different  sover- 
eign jurisdiction,  may  be  regarded  as  assets,  we  have  already 
had  occasion  to  discuss.'' 

•  The  general  rule  is  that  simple  contract  debts,  such  as  a  pol- 
icy of  insurance  not  under  seal,  are,  for  the  purpose  of  found- 
ing administration,  assets  where  the  debtor  resides  without 
regard  to  the  place  where  the  voucher  may  be  found.'  But 
the  State  or  country  which  charters  a  corporation  is  its  domi- 
cile in  reference  to  debts  which  it  owes  because  there  only  it 
can  be  reached  for  the  service  of  judicial  process ;  but  States 
or  countries  where  a  foreign  corporation  does  business,  have 
enlarged  the  facilities  of  local  administration  in  many  respects 
by  appropriate  statute. •♦  Bills,  notes,  and  incoqwreal  personalty 
on  which  money  is  payable,  are  suitable  local  assets  to  found 
local  administration  upon,  where  one  dies  domiciled  elsewhere, 
if  there  be  any  way  to  realize  upon  them.'^ 

tures  in  general,    see    i    Schoul.    Pers.  Mutual   Life   Ins.    Co.  v.   Woodworth, 

Prop.  §§  111-129;    Amos  &  Ferard  on  in  U.  S.  138,  144. 

Fixtures.  '  Epping  v.  Robinson,  2 1  Fla.  36. 

'  Swinburn  v.  Ainslie,  28  Ch.   D.  89.  Stock    of    a    corporation  in  another 

*5'«/ra,  §  175.  State  may    be  local    assets.      Luce  v. 

3  Wyman  v.  Halstead,  109  U.  S.  654.  Manchester  R.,  63  N.  H.  588. 

*See  Mr.  Justice  Blatchford  in  N.  E. 


§    229  EXECUTORS    AND    ADMINISTRATORS.  [pART  III. 


CHAPTER  II. 


INVENTORY  OF  THE  ESTATE. 


§  229.  Inventory  required  formerly  in  England;  Custom  Fallen 
into  Disuse.  —  By  an  English  statute,  enacted  during  the  reign 
of  Henry  VIII.,  every  executor  or  administrator  was  required 
to  file  with  the  ordinary  a  sworn  inventory  of  "  all  the  goods, 
chattels,  wares,  merchandises,  as  well  movable  as  not  movable," 
of  the  deceased.'  Statute  22  &  23  Car.  II.  c.  10,  §  i,  made 
the  return  of  an  inventory  of  the  "  goods,  chattels,  and  credits 
of  the  deceased,  come  to  his  possession,"  at  or  before  a  speci- 
fied day,  a  condition  of  each  administration  bond.^  Probably, 
however,  from  a  much  earlier  period,  the  practice  of  the  English 
spiritual  courts  strenuously  prescribed  this  duty,  with  the  coun- 
tenance of  temporal  tribunals.^  It  was  a  breach  per  se  of  the 
administration  bond  to  neglect  filing  an  inventory  by  the  time 
specified  ;  and  in  some  county  jurisdictions  an  executor  had  to 
exhibit  his  inventory  before  probate  would  be  granted  him."* 

Nevertheless,  the  custom  of  filing  an  inventory  has  fallen 
quite  into  disuse  in  modern  English  practice.  The  bond  given 
under  the  Court  of  Probate  Act  is  conditioned  to  make  an  in- 
ventory when  lawfully  called  on,  and  to  exhibit  the  same  when- 
ever required  by  law  to  do  so  ;  s  in  other  words,  unless  the 
representative  is  cited  in,  he  incurs  no  official  obligation  in  the 
matter ;  and  to  such  a  conclusion  the  spiritual  practice  seems 
to  have  been  forced  before  this  act  was  passed.^     But  the  Eng- 

'  Stat.  21   lien.  VIIL,c.  5,  §4.     See  elusive,   of    waste,   should   the    assets 

Wms.  Exrs.  974,  for  the  full  text  of  the  prove  insufficient.       Orr   v.    Kaines,  2 

statute  requirement.  Ves.  Sen.  193;  Swinb.  pt.  6,  §§6-9. 

*  Wms.  Exrs.  529,  974.  *Wms.  Exrs.  975;   i  Phillim.  240. 

^The  effect  of    neglecting  to  file  an         'Wms.  Exrs.  532,974-976. 
inventory  exposed  the  executor  in  all         *  Wms.    Exrs.    976 ;   i    Phillim.    240. 

courts  to  an  imputation,  sometimes  con-  Hut  in  some  cases  the  court  might  ex 

318 


CHAP.  II.]        INVENTORY  OF  THE  ESTATE.  §  23O 

lish  theory  is  still  to  compel  an  executor  or  administrator  to  ex- 
hibit an  inventory  on  the  petition  of  any  person  in  interest,  or 
even  of  one  who  appears  to  have  an  interest  ; '  and  the  in- 
stance is  very  rare  where  such  a  petition  will  be  refused,  if  pre- 
sented within  a  reasonable  time.^ 

§  230.  Inventory  required  in  American  Practice;  whether  In- 
dispensable. —  The  inventory  is  a  settled  feature  of  probate 
practice  in  the  United  States.  And  as  the  American  probate 
theory,  favoring  public  registry  in  such  matters,  is,  that  the 
legal  representative, —  unless  a  residuary  legatee  who  elects  to 
oblige  himself  simply  to  pay  all  debts  and  legacies  and  run  the 
risk  of  assets,  —  shall  render  accounts  of  his  administration,  his 
first  duty,  as  relates  to  the  court,  is,  after  obtaining  his  creden- 
tials, to  prepare  and  file  an  inventory  of  the  assets  of  the  de- 
ceased ;  such  inventory  to  serve  as  the  basis  of  his  probate 
accounts.  The  bonds  of  executors  and  administrators  are  ac- 
cordingly conditioned,  in  all  or  most  of  the  leading  States,  to 
return  an  inventory  to  the  probate  court  or  registry  within  a 
specified  period  from  the  date  of  qualification.  Thus,  under 
the  Massachusetts  statute,  the  judge  of  probate  issues  an  order, 
usually  on  the  day  when  the  executor  or  administrator  qualified, 
and  upon  his  verbal  request,  to  three  suitable  disinterested  per- 
sons ;  these  appraisers,  having  been  sworn  to  the  faithful  dis- 
charge of  their  trust,  appraise  the  estate  of  the  deceased  upon 
an  inventory  blank  which  accompanies  the  order,  filling  up 
schedules,  and  delivering  the  document,  when  completed,  to 
the  executor  or  administrator,  by  whom  it  should  be  returned 
to  the  probate  office  for  record  with  his  own  oath  that  the  list 

q^t/t?  require  an  inventory  to  be  brought  Phillim,  240;  Gale  v.   Luttrell,  2  Add. 

in,  and  it  is  prudent  for  the  adminis-  234. 

trator  or  executor  to  exhibit  it  before  ^  Wms.  Exrs.  979,  980.     It  has  been 

finally  settling  the  estate,     i    Phillim.  refused  where  assets  sufficient  for  the 

240;   I  Hagg.  106.  petitioner's  purpose  are  admitted  by  the 

'A   probable  or   contingent  interest  representative,  or  where  double  remedies 

entitles  one  to  petition  for  an  inventory;  are  being  pursued  for  attaining  this  re- 

so,  too,  the  claim,  though  disputed,  of  a  suit.     Wms.  Exrs.  978;    2    Cas.   temp. 

creditor.     Wms.  Exrs.  976,  and  cases  Lee,  loi,  134,356. 
cited;  2   Cas.  temp.  Lee,  251,   344;    i 


§  230 


EXECUTORS    AND    ADMINISTRATORS.  [PAKT  III. 


is  just  and  perfect."  Similar  legislation  is  to  be  found  in  Wis- 
consin and  various  other  States  at  the  north-west ;  -  also  in 
New  York,  where  (as  under  English  statutes  ^)  two  appraisers 
suffice,  and  the  appraisal  is  to  be  made  in  duplicate  and  upon 
l)revious  notice  given  to  legatees  and  next  of  kin  resident  in  the 
county,  so  that  they  may  attend  when  it  is  made,  if  they  desire/ 
Three  months  is  usually  the  prescribed  period  within  which 
an  executor  or  administrator  should  return  his  inventory  to  the 
court  or  registry  whence  his  appointment  came.  In  some  States 
only  one  inventory  is  required,  and  for  additional  property  com- 
ing to  his  possession  or  knowledge,  as  well  as  income  and  accre- 
tions, the  executor  or  administrator  is  bound  only  to  account ; ' 
but  the  New  York  statute  provides  for  filing  a  supplemental 
inventory  in  such  a  case.^  Filing  a  second  in\'entory  to  correct 
errors  of  the  first  is  sometimes  permitted  ; "  but  not  for  mere 
formality.^  But  where  no  property  has  come  to  his  hands,  the 
representative  may  dispense  with  the  formality  and  cost  of  an 
inventory.9 


'  Mass.  Gen.  Stats,  c.  96,  §  2  ;  Smith 
(Mass.)  Prob.  Pract.  103.  The  verifi- 
cation appears  to  be  based  upon  the 
ecclesiastical  practice.  Gary  Prob.  Pract. 
121. 

^  Gary  Prob.  Pract.  §  318. 

^  Wms.  Exrs.  974. 

"  Redfi eld's  (N.  Y.)  Surr.  Pract.  214. 
Clerks  and  persons  employed  in  a  pro- 
bate office  are  excluded  by  local  .statutes 
more  or  less  specifically  worded,  and 
such  exclusion  is  founded  in  sound  rea- 
sons of  policy.  Appraisers  are  allowed 
compensation  ;  and  various  abuses  have 
sprung  up  where  the  probate  office  is 
permitted  to  compete  with  professional 
men  and  the  public  for  private  fees  and 
emoluments  in  connection  with  the  set- 
tlement of  estates,  of  which  they  keep 
the  records.  As  to  method  of  notice 
see  4  Dem.  176,  As  to  appraisers'  fees, 
cf.  local  codes;  145  N.  Y.  540. 

The  English  statute  21  Hen.  VIII. 
c-  5.  §  4.  prefers  interested  to  disin- 
terested persons,  i.e.,  creditors,  legatee.s. 


or  next  of  kin.  Wms.  Exrs.  974.  But 
appraisement  is  not  made  in  modern 
English  practice  pursuant  to  the  letter 
of  the  .statute.     Wms.  Exrs.  981. 

5  Hooker  v.  Bancroft,  4  Pick.  50. 

*"  Redfield's  (N.  Y.)  Surr.  Pract.  215; 
4  Redf.  (N.  Y.)  489.  See  also  the  Con- 
necticut statute,  Moore  v.  Holmes,  32 
Conn.  553;  and  as  to  the  Pennsylvania 
rule.  Commonwealth  v.  Bryan,  8  S.  &  R. 
128. 

'  Bradford's  Admr.,  i  Browne,  87. 

'  An  inventory  may  be  acceptable, 
though  filed  later  than  three  months. 
100  Cal.  158.  But  if  so,  a  new  war- 
rant should  issue,  before  appraisers  act. 

9  Walker  v.  Hall,  i  Pick.  20 ;  2  Dak. 
i8y.  If  a  verified  account  is  filed  show- 
ing no  assets,  the  burden  is  on  those 
who  assert  othei-wise  to  show  assets.  1 
Dem.  129.  So,  too,  it  is  held,  where 
there  were  no  assets  left  to  exhibit  to 
appraisers,  but  all  the  assets  had  been 
justly  used  in  paying  the  funeral  ex 
jienses  and  debts.     Robbins.  Matter  of, 


320 


CHAP.   II.] 


INVENTORY    OF    THE    ESTATE. 


§    230 


The  failure  to  return  an  inventory  does  not  necessarily  render 
the  executor  or  administrator  personally  liable  for  the  assets; 
nor  does  the  omission  of  any  particular  debt  from  the  inventory 
items  make  him  absolutely  chargeable  with  it ;  but  the  question 
is  essentially  one  of  culpable  negligence  or  misconduct  on  his 
part,  occasioning  a  loss.'  Nevertheless,  the  failure  to  file  an 
inventory  by  the  time  specified,  as  American  statutes  run, 
amounts  technically  to  a  breach  of  the  condition  of  the  bond, 
which  may  or  may  not  prove  serious  in  its  consequences ;  but 
rarely  can,  if  upon  citation  the  executor  or  administrator  per- 
forms this  duty,  or  shows  good  reason  why  an  inventory  should 
be  deferred  or  dispensed  with.^  In  some,  but  not  all,  of  our 
States,  there  are  express  statute  provisions  for  summoning  the 
dehnquent  representative  to  return  his  inventory,  or  else  show 
cause  why  attachment  should  not  issue ;  also,  upon  reasonable 
cause  appearing,  for  granting  him  further  time  within  which  to 
make  such  return. ^ 


4  Redf.  (N.  Y.)  144;  overruled  by 
Creamer  v.  Waller,  2  Dem.  263.  See 
LiUlefield  v.  Eaton,  74  Me.  516.  A 
contestant  of  a  will  may  insist  upon  an 
inventory.  15  Phila.  58S.  One  whose 
claim  as  a  creditor  of  the  estate  is  dis- 
puted may  nevertheless  have  the  execu- 
tor compelled  to  file  an  inventory.  2 
Dem.  351 ;  4  Dem.  275.  An  unverified 
list  of  assets  is  no  inventory.     3  Dem. 

358- 

Whether  a  provision  in  a  will  can  re- 
lieve of  the  duty  of  filing  an  inventory, 
see  2  Dem.  331  ;  3  Dem.  108. 

An  executrix  need  not  file  an  inven- 
tory of  property  held  by  herself  as  life- 
tenant  under  the  will.  The  right  of  a 
remainder  man  to  demand  an  inventory 
depends  upon  allegation  of  waste. 
Brooks  V.  Brooks,  12  S.  C.  422. 

"  Leake  v.  Beanes,  2  Har.  &  J.  373 ; 
Moses  V.  Moses,  50  Ga.  9,  30;  Con- 
nelly's Appeal,  I  Grant  (Pa.),  366; 
Stearn  v.  Mills,  4  B.  &  Ad.  657. 

21  3 


^  McKim  V.  Harwood,  129  Mass.  75; 
Adams  v.  Adams,  22  Vt.  50;  Lewis  v. 
Lusk,  35  Miss.  696 ;  83  Wis.  394. 
Damages  may  be  assessed  for  failure  to 
make  and  return  an  inventory.  Scott 
V.  Governor,  i  Mo.  686.  See  Potter  v. 
Titcomb,  i  Fairf .  53  ;  Bourne  v.  Steven- 
son, 58  Me.  599.  Such  neglect  may 
support  a  charge  of  maladministration 
against  the  representative.  Hart  v. 
Ten  Eyck,  2  Johns.  Ch.  62.  For  breach 
of  bond  he  is  liable  for  such  damages 
as  may  be  equitably  due  to  any  one 
aggrieved.  State  v.  French,  60  Conn. 
478 ;    §  146. 

^  Redf.  (N.  Y.)  Surr.  Pract.  215.  As 
in  English  practice,  the  application  for 
a  summons  to  file  an  inventory  may  be 
made  by  any  one  interested  in  the  estate ; 
e.g.,  an  apparent  creditor.  Forsyth  v. 
Burr,  37  Barb.  540.  The  court  may 
summon  at  its  own  instance,  though 
this  is  seldom  done.  Thompson  v. 
Thompson,  i  Bradf.  24. 
21 


§   232  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

§  231.  Dispensing  •with  an  Inventory  after  Lapse  of  Time.  — 
Time  alone  constitutes  no  bar  against  the  requirement  of  an 
inventory,  where  the  statute  fails  explicitly  to  sanction  the  omis- 
sion. But  if  a  long  period  has  elapsed,  such  as  forty  years,  a 
presumption  might  arise  either  that  the  estate  had  been  fully 
settled  or  that  there  were  no  assets  available ; '  and  time,  in  con- 
nection with  other  circumstances,  may  operate  much  sooner  to 
dispense  with  filing  an  inventory.^ 

v^  232.  Qualified  Representative  not  exempt  from  rendering  an 
Inventory. —  It  is  not  in  probate  practice  the  original  executor 
or  administrator  alone,  or  an  administrator  with  the  will  annexed, 
who  is  bound  to  make  and  return  an  inventory.  An  administrator 
de  bonis  non  should  inventory  such  estate  of  the  deceased  remain- 
ing unadministered  as  may  have  come  to  his  possession  or  knowl- 
edge.^ So,  too,  the  representatives  of  a  deceased  executor  or 
administrator  are  compellable,  at  the  discretion  of  the  court,  to 
bring  in  an  inventory,  as  well  as  a  final  account,  on  behalf  of 
the  delinquent  testate  or  intestate.-*  Other  instances  are  found 
in  English  reports  in  which  inventories  have  been  oflicially  re- 
quired ;5  and,  as  Williams  observes,  the  ecclesiastical  court  dis- 
couraged all  hanging  back  with  respect  to  the  production  of  an 
inventory  when  called  for,  and  generally  condemned  the  con- 
tumacious in  costs  besides.*"  In  American  practice,  the  bonds 
of  all  executors,  administrators,  probate  guardians,  and  testa- 
mentary trustees,  are   usually  conditioned  to  return  an  inven- 

'  Ritchie  v.  Rees,  i  Add.  144.  ever  came  to  his  possession  or  knowl- 

^  See    Wms.    Exrs.    979 ;  Bowles    v.  edge.     See  Higgins  v.  Higgins,  4  liagg. 

Harvey,    4     Hagg.    241  ;    Scurrah    v.  242. 

Scurrah,    2     Curt.    919.     See    further,  ^  Wms.  E.xrs.  979. 

post,  3lS  to  dispensing  with  an  account.  *Ib. ;  Ritchie  v.   Rees,    i    .\dd.   1 5S  ; 

Calling  for  an  account  in  connection  Gall  -•.  Luttrell,  2  Add.  234. 

with,  or  by  way  of  substitution  for,  an  ^  ^S-,    from    administrators   JuraiiU 

inventory,   brings   up   this   issue   more  minoritaie  and  administrators  ptitJtnte 

plainly.     A   sworn    declaration  instead  lite.     Wms.    E.\rs.    980;   i    Cas.   temp. 

of  an  inventory,  setting  forth  desperate  Lee,  15:2  Cas.  temp.  Lee,  131. 

debts,  may  suffice  often  to  discharge  the  *  Wms.    Exrs.    9S0;   i    Phillim.    241, 

representative  where  no  valuable  assets  243  ;  2  Phillim.  364. 

322 


CHAP.   II.]  INVENTORY    OF    THE    ESTATE.  §    233 

tory ; '  and  without  an  inventory  valuation  as  a  basis,  they  can- 
not readily  prepare  their  accounts  in  due  form. 

§  233.  What  the  Inventory  .should  contain.  —  According  to 
English  practice,  the  inventory  should  contain  a  full  descrip- 
tion and  valuation  of  all  the  personal  property  to  which  the 
executor  or  administrator  became  entitled  by  virtue  of  his  office ; 
this  document  being  in  effect  a  list  of  the  assets  for  which  he 
stands  chargeable,  taken  at  their  just  worth. ^  What  these 
assets  are  we  showed  in  the  preceding  chapter ;  and  chattels, 
real  and  personal,  animate  and  inanimate,  corporeal  and  incor- 
poreal, answering  to  that  description,  are  to  be  included.  Such, 
loo,  is  the  doctrine  generally  prevalent  in  the  United  States  ; 
but  while  in  some  parts  of  this  country  only  personal  prop- 
erty of  the  deceased  should  be  inventoried,  the  legislatures 
of  other  States  insist  that  his  real  estate  shall  also  be  ap- 
praised, two  separate  schedules  being  made,  and  the  schedule 
of  personal  property  alone  serving  as  the  basis  of  the  execu- 
tor's or  administrator's  accounts.-'  The  latter  practice  appears 
the  more  convenient,  as  affording  record  proof  of  all  the  assets, 
actual  or  potential,  upon  which  creditors  and  legatees  may  rely  ; 
and,  under  a  will  which  confers  the  power  to  manage  and  con- 
trol the  testator's  real  estate,  or  where,  as  some  local  statutes 
provide,  the  representative  has  a  general  right  of  possession  of 
the  real  estate  while  the  estate  is  being  settled,  there  are  rea- 
sons especially  urgent  why  real  property  should  be  scheduled. 

An  inventory  should  be  specific  in  its  enumeration  of  the  ef- 
fects of  the  estate  ;  not  necessarily  minute,  of  course,  and  yet 
so  as  to  .separate  large  items  of  value,  and  set  out  by  themseh-es 
such  special  classes  as  chattels  real,  household  furniture,  cattle, 
stock  in  trade,  cash,  and  securities  of  the  incorporeal  sort,  such 
as  notes  and  bonds,  all  of  which  fall  under  the  denomination  of 

'  See  Smith  (Ma.ss.)  Pro b.  Pract.  loi.  ^  See  supra,   §  iqS;  Smith's   (Mass.) 

^  Wms.  Exrs.  9S0.     Personalty  fraud-  Prob.   Pract.   102;  Gary  Prob.  Pract.  § 

ulently  conveyed  by  the  decedent  need  330,  citing  statutes   of  Minnesota  and 

not  be  inventoried.     Gardner  v.  Gard-  Wi.sconsin.     Cf.   Henshaw  v.  Blood,  i 

ner,  17  R.  I.  751.  See  §  234.  Mass.  35. 


§   233  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

personal  property  and  assets."  If  property  found  among  the 
effects  of  the  deceased,  and  coming  to  the  possession  of  the  rep- 
resentative, is  claimed  by  others  under  a  title  not  yet  established, 
it  seems  prudent  to  include  this  item  in  the  list,  with  words  or 
a  memorandum  indicating  doubt  as  to  the  representative's  own 
title.-  Bonds  and  investment  securities  should  be  stated  at 
their  current  market  value,  or  possibly,  in  some  convenient  in- 
stances at  par;  provided,  in  the  latter  instance,  that  the  repre- 
sentative carefully  regard  the  fair  premium  in  dealing  and 
disposing  of  them,  so  that  those  interested  shall  have  the  bene- 
fit shared  justly.^  Debts  and  incorporeal  choses  of  a  doubtful, 
desperate,  or  worthless  character  should  be  so  denominated. 
Real  estate  should  be  specified  by  parcels.'' 

An  inventory  is,  after  all,  hwt  prima  facie  evidence  of  the  true 
value  of  assets,  and  prudence  and  good  faith  is  the  test  of  the 
representative's  responsibility  in  dealing  therewith ;  so  that 
whether  more  happens  to  be  actually  realized,  or  less,  or  the 
title  fails  altogether,  the  exercise  of  reasonable  diligence  and 
honesty  on  his  part  is  all  that  the  law  can  exact  from  the  ex- 
ecutor or  administrator.  Such  being  the  result,  all  discrepancies 
may  be  corrected  in  a  representative's  accounts,  and  debit  or 
credit  given  accordingly.      Hence,  too,  the  valuation  in  the  in- 

'  Vanmeter  v.  Jones,  3  N.  J.  Eq.  520.  tion  rather  of  the  probate  court.     Redf. 

^  Waterhouse  v.  Bourke,  14  La.  Ann.  Surr.   Pract.  211  ;   Sheldon  v.   Bliss,  8 

35(S;  Gold's  Case,  Kirby  (Conn.)  100.  N.  V.  31.     See  §  4^-]  post  as  to   rights 

'  If  set  forth  at  par,    the   inventory  of  widow,  etc.     A  separate  and  distinct 

should  so  state  the  fact.  inventory  of  the  property  allowed  the 

*  See   Adams   v.  Adams,  20    Vt.  50;  widow  is  required  in  some  States,  such 

Wms.    Exrs.    981.     Appraisal    at    the  as  Wisconsin.     Gary  Prob.  Pract.  §  321. 

market  value,  as  nearly  as  can  be  ascer-  A  debt  returned  in  the  inventory  with- 

tained,    whether    above   or  below  par,  out  comment  will  be  presumed  collected 

appear  to    be   the   rule  as  to    market-  or  collectible.     Graham  v.  Davidson,  2 

able  investment  securities.     Gary  Prob.  Dev.  &  B.  Eq.  155;   Hickman  z^.  Kamp, 

Pract.  §  328.     Exempt  articles  belong-  3  Bush,  205.     C«7«/ra  where  returned  as 

ing  to  widow  and  children,  though  not  desperate.     Finch  v.  Ragland,  2  Dev. 

deemed  a.ssets,  should  be  included  and  Eq.  137.     Even  items  of  little  value,  or 

stated  in  the  inventory   without    being  desperate,  ought    in   some   way   to    be 

appraised.     N.  Y.  Stat,  cited  Redfield's  recognized    in    the   inventory.     48  La. 

Surr.    Pract.  211.     And  in  New  York  Ann.  289.     What  are  not  really  assets 

the  appraisers  appear  to  have  powers  as  for  administration  may  be  omitted.     Cf. 

to  setting  apart  for  the  widow,  which  in  §§  23S-245. 
some  other  States  call  for  the  interven- 


CHAP.    II.]  INVENTORY    OF    THE    ESTATE.  §   234 

ventory  by  one  standard  or  another  appears  to  be  of  less  conse- 
quence than  a  consistent  valuation  by  the  particular  standard  as 
therein  plainly  exhibited ;  for  values,  and  especially  those  of 
various  marketable  stocks  and  securities,  may  fluctuate  from  day 
to  day,  so  as  to  furnish  no  absolute  criterion  of  accountability. 
Similar  considerations  apply  to  accruing  profits,  and  the  interest 
and  income  of  personal  property  left  by  the  deceased.  Such 
accretions  might  well  be  included  up  to  the  date  of  appraisal, 
though  not  later ;  or,  perhaps,  might  be  left  out  altogether,  as 
is  not  infrequent ;  but  by  whichever  standard  reckoned,  any  in- 
ventory must  be  very  far  from  affording  a  perfect  statement  of 
profits,  interest  and  income  as  they  come  to  the  hands  of  the 
executor  or  administrator ;  so  that  at  best  the  inventory  figures 
represent  only  approximately  the  gross  available  assets  in  many 
instances,  and  must  be  supplemented  by  the  administration  ac- 
counts.' 

§  234.  "What  the  Inventory  should  contain;  Subject  continued. 
-^  Local  statutes  prescribe  in  terms,  more  or  less  specific,  what 
shall  be  included  in  the  inventory.  As  to  general  property  of 
the  deceased,  the  rule  embraces  all  that  has  come  to  the  "  pos- 
session or  knowledge"  of  the  executor  or  administrator;  and 
to  this  his  oath  of  verification  usually  corresponds  in  tenor. 
Hence  notes  or  chattels  of  any  kind  in  the  hands  of  other  per- 
sons, and  belonging  of  right  to  the  executor  or  administrator, 
must  be  inventoried,  as  also  debts,  demands,  and  claims  still 
uncollected  ;  and  if  the  representative  choose  to  leave  such 
things  in  a  different  possession  still,  by  way  of  offset  to  the 
possessor's  own  demand  upon  the  estate,  he  must  go  through 
the  form  of  discharging  himself  on  his  accounts.^  It  is  not 
competent,  as  English  courts  hold,  for  the  court  of  probate  to 
insist  that  an  inventory  shall  include  personal  estate  situated  in 
a  foreign  country,  since  this  is  out  of  its  own  jurisdiction  and 

'  See  Willoughbyz'.  McClure,  2  Wend.  etc.     See  also   Weed  w.    Lermond,   ^^j; 

609 ;  Mass.  Gen.  Stats,  c.  98,  §  6.     It  is  Me.  492. 

fair  that  the  inventory  should  show  or  '  See  Wms.  Exrs.  979,  980,  Perkins's 

indicate,  as  to  all  interest-bearing  secuii-  note;  Smith  (Mass.)   Prob.  Pract.  loi- 

ties,  therateof  interest,  name  of  debtor,  103  ;  Gary  Prob.  Pract.  §  318. 
date  from  which  unpaid  interest  has  run, 


§   235  EXECUTORS    AND    ADMINISTRATORS.  [PART   III. 

cognizance  ; '  and  practically,  indeed,  the  means  of  appraising 
what  is  abroad  are  imperfect.  But  it  is  held  by  various  Ameri- 
can tribunals,  in  construction  of  the  local  statute,  that  personal 
assets  belonging  to  a  deceased  resident  of  the  State  must  be 
included  in  the  inventory  of  his  general  executor,  even  where 
situated  in  another  State.^  Such  requirement  does  not  apply 
to  an  ancillary  appointee  with  such  strictness,  probably,  inas- 
much as  his  authority  is  more  strictly  local.^ 

Assets  of  whose  existence  neither  the  executor  or  administra- 
tor, nor  the  appraisers,  are  at  the  time  aware,  cannot  of  course 
be  inventoried  ;  and  no  blame  is  to  be  imputed  to  the  represen- 
tative in  consequence,  if,  gaining  knowledge  thereof  afterwards, 
he  charges  himself  in  his  accounts  with  the  property,  and  pur- 
sues the  usual  line  of  duty  as  to  procuring  or  realizing  the 
same.'' 

§  235.  Assets  and  Inventory  in  Special  Instances;  Co-ovrner- 
ship,  etc.  —  Should  a  stranger  administer  upon  the  estate  of  one 
of  several  wards  owning  a  common  fund,  he  can  and  ought 
to  make  an  actual  division  of  the  fund  with  the  guardian  of  the 
surviving  wards,  and  file  an  inventory  accordingly.  But  if  the 
guardian  procures  his  own  appointment  as  administrator  on  the 
deceased  ward,  he  cannot  by  assuming  this  double  character 

'  2  Cas.  temp.  Lee,  551  ;  Wms.  Exrs.  to  inventory  property  which  has  been 

982.  fraudulently   transferred   by  the   dece- 

*  Butler's  Inventory,  38  N.  Y.  397.  dent,  cf.  Booth  v.  Patrick,  8  Conn.  105, 
^  See   supra,   §    181.      It  is    held  in  with     Minor   v.    Mead,    3    Conn.    289; 

Sherman  v.  Page,  28  N.  Y.  Supr.  59,  Bourne  w.  Stevenson,  58  Me.  504;  An- 
that  where  the  testator  names  an  exec-  drews  v.  Tucker,  7  Pick.  250.  And  see 
utor  to  take  charge  of  property  within,  17  R.  I.  751.  Agreeably  to  the  prin- 
and  another  of  property  without,  the  ciple  stated  in  the  te.xt,  it  is  perceived 
State,  such  an  executor  is  only  bound  that  the  inventory  includes,  by  express 
to  account  for  such  property  as  may  be  mention  or  inference,  all  the  assets,  all 
within  the  State  in  which  he  is  appointed,  that  the  representative  is  bound  to  real- 
Muniments  of  title  and  securities  rcpre-  ize  and  procure  for  administration  pur- 
senting  incorporeal  rights  abroad,  and  poses;  and  that  the  claim  of  a  title  for 
valuable /i^r  j^  in  enforcing  such  rights,  those  purposes  is  its  basis,  not  a  title 
ought,  in  general,  we  presume,  to  be  already  vested  in  the  representative  and 
inventoried,  whatever  comity  miglu  pro-  undisputed.  The  doubtfulness  of  the 
nounce  the  locus  of  the  debt  or  right.  title  is  matter  for  note  by  the  appraisers 

*  As  to  the  duty  of  the  representative  in  setting  the  valuation. 

326 


CHAP.   II.]  INVENTORY    OF    THE    ESTATE.  §   236 

evade  the  duty  of  severing  the  tenancy  in  common  by  other 
methods  equally  distinctive  and  unequivocal ;  and  of  likewise 
filing  an  inventory  which  may  show  the  separate  share  belong- 
ing to  the  estate.' 

§  236.  Effect  of  the  Inventory;  Power  of  the  Local  Probate 
Court  to  alter,  etc. ;  Inventory  as  Evidence.  —  In  New  York  the 
appraisers'  estimate  of  the  value  of  articles  is  not  regarded  as 
the  exercise  of  an  absolute  discretion  on  their  part,  but  their 
opinion  is  subject  to  review  by  the  probate  court.^  Such,  how- 
ever, is  the  inconclusiveness  of  any  inventory  valuation  in  pro- 
bate law  that  the  court  of  probate  is  seldom  asked  to  intervene 
in  such  a  manner,  and  the  extent,  moreover,  of  such  a  jurisdic- 
tion, apart  from  statute  sanction,  may  be  a  matter  of  serious 
question.^  If,  however,  the  personal  representative  and  the 
appraisers,  or  the  appraisers  among  themselves,  differ  as  to 
what  should  in  fact  be  included  in  the  inventory,  or  if  otherwise 
there  is  such  variance  that  the  inventory  cannot  be  returned  to 
court  in  due  form  as  exhibiting  their  concurrence  ;  or  if  the 
appraisers  are  delinquent ;  the  court,  as  it  seems,  may  properly 
make  orders  appropriate  to  the  exigency,  and  perhaps  a  warrant 
might  issue  to  other  appraisers,  the  previous  one  being  revoked. 
For,  inasmuch  as,  in  American  practice  at  least,  the  failure  of 
the  executor  or  administrator  to  return  a  true  and  perfect  in- 
ventory is  taken  to  be  a  direct  breach  of  his  official  bond,'*  he 
ought  not  to  be  made  answerable  for  the  disagreement,  caprice, 
or  carelessness  on  the  part  of  the  appraisers,  despite  his  own 
protest  and  without  his  own  fault.  Where,  moreover,  apprais- 
ers are  specially  empowered  to  set  apart  properly  for  the  widow, 

'  Colvert  V.  Peebles,  71  N.  C.  274.  objections  to  inventories,  though    not 

^  Applegate   v.    Cameron,    2     Bradf.  permitting   witnesses   to   falsify   it.     2 

119;  Redf.  (N.  Y.)  Surr.  Pract.  212.  Add.  331  ;  Wms.  Exrs.  985. 

'  English  temporal    judges  have  de-         *•  Bourne  v.   Stevenson.   58  Me.  499. 

niedtheauthority  of  ecclesiastical  courts  An  inventory  not  certified  by  the  exec- 

to  entertain  objections  to  an  inventory  utor  or  administrator  is  not  as  to  him 

after  it  has  been  exhibited.     Hinton  v.  an  inventory,  and  is  not  ground  suffi- 

Parker,  8  Mod.  168;  Catchsidez/.  Oving-  cient     for     charging     him.       Parks    7: 

ton,   3   Burr,    1922;    Wms.   Exrs.    983.  Rucker,  5  Leigh,  149.     But  see  Carroll 

But  the  highest  ecclesiastical  court  in  v.  Connet,  2  J.  J.  Marsh.  195;  100  Cal. 

England  has    nevertheless    entertained  593.      Local    practice    may   determine 


§    236  EXECUTORS    AND    ADMIX  ISTRATORS.  [pART   III. 

it  is  held  that  their  negligence,  fraud,  or  possible  abuse  of  such 
authority  may  be  corrected  by  the  probate  court  or  surrogate  ; 
and  likewise  an  irregularity,  mistake,  or  improper  valuation, 
though  conscientiously  made  by  them.' 

A  court  of  probate  ought  not,  it  would  appear,  to  reject  an 
inventory  or  order  it  modified,  because  it  contains  property  the 
title  to  which  is  disputed  ;  for  to  common-law  tribunals  belongs 
the  adjudication  of  the  title,  and  the  probate  court  cannot  con- 
clude the  question.-  But,  granting  that  an  inventory  cannot  be 
impeached,  this  only  affects  proceedings  relating  to  the  inventory 
itself ;  and  it  may  be  shown  on  the  accounting  of  the  executor 
or  administrator  that  assets  were  omitted  which  were  or  ought 
to  have  been  accounted  for,  and  that  assets  yielded,  or  should 
have  yielded,  more  than  they  were  appraised  at ;  so,  vice  versa, 
on  the  accounting,  the  inventory  may  be  shown  to  have  in- 
cluded what  should  have  been  omitted  or  to  have  rated  specified 
things  for  more  than  they  could  fairly  bring.^ 

An  inventory  duly  returned  to  the  probate  court  or  registry, 
is,  according  to  modern  authorities,  prima  facie  proof  of  the 
amount  of  property  (personal,  or  personal  and  real,  as  the  case 
may  be)  belonging  to  the  estate  within  the  State  or  country 
where  jurisdiction  was  taken  \^  and  also  of  its  worth  by  items 
at  the  time  of  appraisal.  But  being  only  prima  facie  evidence, 
the  executor  or  administrator  is  simply  chargeable  so  as  to  have 
the  onus  of  disproving  its  correctness  ; '  and  in  a  controversy  be- 
tween himself  and  the  appraisers,  he  may  show  that  the  valua- 
tion is  too  high  or  too  low  ;  ^  nor,  certainly,  are  subsequent 
changes  of  value,  or  subsequent  additions  to  the  assets,  or  gains 
or  losses  in  realizing  the  assets,  to  be  disregarded,  whatever  the 

such  a  point.      An  administrator  may  Montgomery  v.  Dunning,  2  Bradf.  Surr. 

.show  that  he  certified  to  the  inventory  220. 

under  an  error  of  fact.     Martin  z/.  Boler,  *  Wms.  Exrs.  1966;  Giles  v.  Dyson, 

13  La.  Ann.  369.     See  i  Dem.  306.  i    Stark.  N.  P.  32;  Reed  v.  Gilbert,  32 

'  Applegatez/.  Cameron,  2  Bradf.  119.  Me.    519;  Morrill    v.  Fo.ster,  33    N.  H. 

Legatees  or  ne.\t  of  kin  may  not  inter-  379. 

fere  ■with  an  appraisal ;  they  must  wait  '  lb. ;  Hoover  v.   Miller,  6   Jones   L. 

for  the  accounting.     Vogel  v.  Arbogast,  79;  Cameron  z/.  Cameron,  15  Wis.  i. 

4  Dem.  399.  *   Ames  v.   Downing,    i    Bradf.   321. 

'  Gold's  Appeal,  Kirby  (Conn.)  100.  See  Loeven's  Estate,  Myrick  Prob.  (Cal.) 

^  See  Part  VI L,  post,  as  to  accounts ;  203. 

328 


CHAP.    11.]  INVENTORY    OF    THE    ESTATE.  §   237 

inventory  itself  may  have  shown.'  In  short,  the  inventory, 
\w\vl\q  prima  facie  evidence  of  the  value  of  the  property,  as  well 
as  of  the  property  itself,  which  came  to  the  executor  or  adminis- 
trator, as  also  of  the  solvency  of  those  who  owe  the  estate,  — 
rendering  h\xn  prima  facie  liable  accordingly,  —  is  not  conclusive 
either  for  or  against  the  executor  or  administrator  or  his  sureties, 
but  is  open  to  denial  or  explanation,  and  he  must  render  ac- 
count for  all  assets.^  As  a  matter  of  judgment  record,  an  ap- 
praisement confirmed  by  the  court  is  conclusive  only  of  the 
subject  to  which  it  relates.^ 

§  237.  Advantages  of  Returning  an  Inventory.  —  The  inventory 
is  of  advantage,  both  to  the  executor  or  administrator  himself, 
and  to  creditors,  legatees,  heirs,  and  other  persons  interested  in 
the  estate.  It  is  the  basis  upon  which  the  representative  makes 
his  accounts  ;,  it  shows  the  amount  for  which  he  is  chargeable, 
and  limits  presumptively  his  responsibility,  except  for  increments, 
income,  and  such  assets  not  therein  appraised,  through  ignor- 
ance, inadvertence,  or  other  cause,  as  may  come  afterwards  to 
his  hands.  On  the  other  hand,  the  heirs  and  other  parties  in- 
terested have,  in  the  recorded  inventory,  the  best  evidence  pos- 
sible under  the  circumstances  of  the  assets,  their  condition  and 
value,  as  they  came  to  the  representative's  possession  and  knowl- 
edge at  the  outset  of  his  administration,  and  are  supplied  with 
essential  evidence,  in  case  it  becomes  necessary  to  institute  pro- 
ceedings against  him  or  oppose  the  allowance  of  his  accounts, 
because  of  negligence  or  misconduct  while  invested  with  his 

'  Willoughby  v.  McCluer,  2    Wend,  inventory  exhibited  before  probate  (as 

608;  Mass.  Gen.  Stats,  c.  98,  §7.     The  required  by  some  county  ecclesiastical 

failure  to  inventory  certain  property  is  tribunals)    and    the    inventory   proper, 

not  conclusive  against  those  interested  See  Wms.  Exrs.  1968;  Stearn  z/.  Mills, 

in   the   estate.     Walker  v.  Walker,  25  4  B.  &  Ad.  657. 

Ga.    76;  McWilHe  v.   Van  Vacter,    35         ^  Nabb  7j.  Nixon,  7  Nev.  163;  Grant 

Miss.  428.     Nor  does  it  estop  the  rep-  v.   Reese,  94  N.   C.  720;  66  Wis.  490. 

resentative   from    recovering  it.     Con-  As  to  the  executor's  or  administrator's 

over  V.  Conover,  i   N.  J.  Eq.  403.  own  debt  (which  should  be  inventoried), 

Concerning  the  effect  of  an  inventory,  see  supra,  §  208. 
as  an  admission  of  assets,  the  English         ^ggjjgr'g  Estate,  82  Penn.  St.  153. 
courts  have  distinguished  between  the 


§    237  EXECUTORS    AND    ADMINISTRATORS.  [PART  III. 

responsible  office.'  For  the  representative  is  bound  to  account 
for  assets  named  in  the  inventory,  so  as  to  show  at  all  events 
good  faith  and  due  diligence  in  attempting  to  realize.^ 

'  Smith  Prob.  Pract.  loi,  I02.  inventoried  as   assets.       Nesmith,   Re, 

A  claim  against  a  former  representa-     (N.  Y.) 
tive  for   maladministration   should  be        *  See  Sanderson,  .ffif,  74  Cal.  199. 


PART  IV. 

GENERAL  POWERS,  DUTIES  AND  LIABILITIES  OF 
EXECUTORS  AND  ADMINISTRATORS  AS  TO  PER- 
SONAL ASSETS. 


CHAPTER  I. 

representative's  title  and  authority  in  general. 

§  238.  Title  to  Personal  Property  devolves  upon  Representa- 
tive by  Relation  from  Decedent's  Death  ;  Liability,  etc.  —  We  have 
observed  that,  in  modern  practice,  acts  performed  before  qualifi- 
cation in  good  faith,  and  for  the  benefit  of  the  estate,  are 
generally  cured  by  qualification,  whether  the  representative  be 
executor  or  administrator  ;  and  that  his  authority  once  fully 
conferred  by  the  probate  court,  the  representative's  title  re- 
lates back  substantially  to  the  date  of  the  decedent's  death.' 
We  have  observed,  also,  that  as  to  property  left  by  the  dece- 
dent, the  general  rule  is  that  title  to  personal  property  devolves 
thus  immediately  upon  the  executor  or  administrator,  while  title 
to  the  real  property  does  not  ;  and  that  property  of  the  one 
kind  constitutes  at  common  law  assets  in  the  representative's 
hands,  while  property  of  the  other  kind  does  not,  except  under 
peculiar  circumstances,  or  when  there  is  a  deficiency  of  per- 
sonal assets.^     These  statements  cover  nearly  the  whole  ground 

^  Supra,    §§194,    195.       Where   one  ment.  Wiswellz/.  Wiswell,  35  Minn.  371. 

discharges  a  mortgage    before    his  ap-  And  see    McDearmon  v.  Maxfield,  38 

pointment  as  executor  or  administrator.  Ark.    631.       But     the     representative 

the  discharge  becomes  vaHd  by  his  ap-  should  not  disturb  acts  beneficially  done 

pointment.     30  Hun  (N.  Y.j  269.     And  by    others     before     his     appointment, 

so  with  a  fair  sale  of  property.     50  N.  V.  merely  for  the  sake  of  asserting  his  au- 

Supr.    225.      An    administrator's    title  thority.     Cooper  z/.  Hayward,  7 1  Minn, 

cannot  be  affected  to  the  prejudice  of  374. 
the  estate  by  acts  prior  to  his  appoint-         ~ Supra,  §  198. 


s^    239  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

of  the  representative's  title  ;  but  to  better  elucidate  those  fun- 
damental doctrines,  let  us  explore  the  subject  further  in  the 
course  of  the  present  chapter. 

As  with  the  title,  so  is  the  liability  of  the  representative ;  and 
he  must  account  for  assets  previously  received  or  under  his  con- 
trol in  any  way ;  pursuing  with  due  prudence  and  good  faith 
where  others  have  such  assets.' 

§  239.  The  Representative's  Title  aud  Authority  during  the  Ad- 
ministration excludes  that  of  all  Others  in  Interest. —  The  title  of 
the  executor  or  administrator,  as  representative,  extends  so  com- 
pletely to  all  personal  property  left  by  the  decedent  as  to  exclude 
creditors,  legatees,  and  all  others  interested  in  the  estate.  They 
cannot  follow  such  property  specifically  into  the  hands  of  others, 
much  less  dispose  of  it  ;  but  the  executor  or  administrator  is 
the  only  true  representative  thereof  that  the  law  will  regard.^ 
The  legal  and  equitable  title  to  all  the  personal  property  of  the 
deceased,  including  choses  in  action  and  incorporeal  rights,  vests 
in  fact  in  the  executor  or  administrator,  as  against  all  others, 
during  the  suitable  period  for  administration,  and  he  holds  this 
property  as  a  trustee  and  proper  representative  of  all  parties  in- 
terested therein.^ 

This  paramount  title  of  the  personal  representative  is  recog- 
nized in  various  instances.  A  lien  cannot  attach  on  the  goods  of 
a  principal  before  he  parts  with  their  possession  ;  and,  accordingly, 
if  a  principal  die  in  possession  of  the  goods,  and  they  come  after- 
ward to  the  possession  of  his  administrator,  the  title  is  changed, 

'See    Myers    Re,     131    N.    Y.    409;  lows  one  rule;  it  vests  in  the  heir  sub- 

§§269-271.  ject  to  the  representative's  lien,  derived 

*  Wms.   Exrs.   932;  Haynes  v.  Yo\  from  the  deceased,  for  the  payment  of 

shaw,  1 1  Hare,  93 ;  Nugent  v.  Giffard,  debts,  etc.,  and  to  his  right  of  present 

I  Atk.  463;  Beattie  z/.  Abercrombie,  18  posse.ssion.     Becket  v.   Selover,  7  CaJ. 

Ala.  9  ;  Goodwin  v.  Jones,  3  Mass.  514.  215. 

^  Beecher  v.   Buckingham,  18  Conn.  All  the   personalty  of  the  decedent, 

1 10;  Nealez-.  Llagthorpe,  3  Bland  (Md.)  including  property  covered  by  his  bill  of 

551  ;  Alston  v.   Cohen,  i    Woods,  487.  sale,  but  never  delivered,  passes  to  the 

To  this  rule  statute  exceptions  are  found  possession  and  control  of  his   executor 

in   some  parts  of  the    United    States,  or    admini.strator.      Palmer   v.    Palmer, 

Thus,  under  the  California  system  (as  55  Mich.  293. 
in  Texas),  real  and  personal  estate  fol 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.         §    24 1 

and  a  factor,  who  may  receive  them  from  the  administrator,  can- 
not be  permitted  to  hold  them  for  advances  made  to  the  deceased 
in  his  lifetime,  without  the  administrator's  assent.'  And  so 
completely  does  title  to  the  personal  assets  vest  in  the  represen- 
tative, that  they  are  not  subject  to  seizure  and  sale  under  an 
execution  issued  on  a  judgment  rendered  against  the  decedent 
after  his  death. ^  The  representative's  claim  is  of  course  superior 
to  that  of  heirs,  distributees,  or  residuary  legatees,  so  long  as 
the  estate  remains  unsettled  ;  ^  and  counsel  nominated  under  the 
will  to  assist  him  cannot  control  his  discretion.'' 

§  240.  Executor  or  Administrator  has  a  right  to  dispose  of  Per- 
sonal Assets.  —  It  follows  that  the  executor  or  administrator,  and 
he  alone,  has  an  absolute  dominion  and  power  of  disposal,  in  law 
and  equity,  over  the  goods,  chattels,  rights,  and  effects  of  the 
deceased ;  he  can  dispose  of  them  at  pleasure,  being,  however, 
responsible  for  the  faithful  execution  of  his  trust ;  and  others 
in  interest  cannot  follow  such  property  into  the  hands  of  the 
alienee. 5  Only  a  statute,  or  the  will  of  the  testator,  can  restrain 
the  power  of  a  personal  representative  to  thus  alienate  the  per- 
sonal property  of  his  deceased. 

§241.  The  same  Subject;  Executors  and  Administrators  dis- 
tinguished in  this  Respect.  —  But  here  we  must  distinguish  be- 
tween executors  and  administrators.  An  administrator's  office 
is  conferred  by  the  court  appointment,  and  his  authority  is  de- 
rived from  statute  and  the  general  probate  law,  not  from  any 
confidence  reposed  in  him  by  the  deceased ;  his  powers  and 
duties  consequently  are  commensurate  with  others  of  his  class, 
and  are  defined  by  general  rules. "^     But  it  is  quite  different  with 

'  Swilley  v.  Lyon,  18  Ala.  552.  pledges,  etc.,  of  personal    property  by 

^  Snodgrass  z/.  Cabiness,  15  Ala.  160.  the  representative. 

'  Bearss  v.  Montgomery,  46  Ind.  544  ;         ''  An  administrator  in  most  parts  of 

-Alston  V.  Cohen,  i  Woods,  487.  the  United  States  has  all  the  power  over 

*  Young  z'.  Alexander,  16  Lea,  108.  the  personal  property  of  the  deceased 

'  Beecher   &.  Buckingham,  18    Conn,  which  are  possessed  by  an  administrator 

1 10;  Nealez;.  Hagthorpe,  3  Bland  (Md.)  at  common  law  ;  and  he  mu.st  adminis- 

551 ;  Lappin  v.   Mumford,   14   Kan.   9.  ter  all  the  goods,   chattels,  rights,  and 

See  cs.  3,  4,  more   fully   as  to    sales,  credits  which  are  within  the  State;  the 

333 


§   242  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  executor  ;  for  his  authority,  being  conferred  by  a  will  duly 
admitted  to  probate,  is  subject  in  a  great  measure  to  the  powers 
and  restrictions  which  the  testator  may  therein  have  prescribed. 
The  will  of  the  testator  making  special  appropriations  of  the  sev- 
eral parts  of  his  property,  is  a  law  to  his  executors  from  which 
they  ought  not  to  swerve,  unless  authorized  by  some  proper  tri- 
bunal,' and  save  in  accordance  with  the  fundamental  maxim,  that 
the  necessity  of  settling  lawful  debts  and  charges  against  one's 
estate  must  override  all  testamentary  dispositions.  And  where 
trusts  are  raised  by  the  will,  but  no  trustee  is  appointed  by  the 
testator,  the  law  makes  the  executor,  or  any  one  who  may  be 
legally  intrusted  with  the  execution  of  the  will,  virtually  the 
trustee  in  many  senses,  and  he  may  consequently  retain  funds 
in  his  hands  for  the  purposes  of  such  trust,  until  the  probate 
court  expressly  appoints  a  trustee.^ 

§  242.  But  Title,  etc.,  of  Executor  or  Administrator  is  byway  of 
Trust.  —  The  title  of  the  representative,  however,  is  not  absolute, 
but  exists  only  for  special  purposes  connected  with  the  settle- 
ment of  the  estate.  Thus  the  title  of  an  administrator  vests  by 
way  of  trust  in  order  to  enable  him  to  administer  the  property 
according  to  law,  by  paying  the  debts  of  the  deceased,  and  the 
funeral  and  other  necessary  charges,  and  making  distribution  on 
final  settlement.'  An  executor,  again,  has  the  property  only 
under  a  trust  to  apply  it  for  payment  of  the  testator's  debts,  and 
such  other  purposes  as  one  ought  to  fulfil  in  pursuance  of  his 
office  under  the  will.'*  Nor  can  a  trust  term  devised  to  executors 
continue  so  as  to  retain  the  legal  estate  in  them  a  moment 
longer  than  is  necessary  to  enable  them  to  perform  the  objects 

local  statute  tends  to  enlarge  rather  than  '  Voorhees  v.  Stoothoff,  11    N.  J.  L. 

restrain  this  authority.     See  Goodwin  145;  Stallsworth  v.  Stallsworth,  5  Ala. 

V.  Jones,  3  Mass.  514.  144;  Wood  v.  Nelson,  9  B.  Mon.  600. 

In  LoTiisiana  the  law  is  of  civil  origin  ^  Saunderson  v.  Stearns,  6  Mass.  37  ; 

and  peculiar;  it  appears  that  the  func-  Dorr    v.    Wainwright,    13    Pick.   328; 

tions  of  an  executor  cease  at  the  end  of  Groton  v.  Ruggles,  17  Me.  137. 

a  year,  while  those  of  an  administrator  ^  Hall  v.  Hall,  27   Miss.  458;  Lewis 

continue  until  the  administration  is  fin-  v.  Lyons,  13  111.  117. 

ished.     Ferguson  v.  (jlaze,  12  La.  Ann.  *  See  Ashhurst,  J.,  in  4  T.  R.  645. 
667. 

334 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.         §    243 

of  the  trust.'  As  with  his  title,  so  in  its  ultimate  consequences 
with  his  power  of  disposition,  one  deals  with  the  property  in  the 
interests  of  the  estate  he  represents.  His  cardinal  duty  is  to 
settle  the  estate  according  to  law,  or  the  last  will  of  the  deceased, 
as  the  case  may  be,  with  due  diligence,  fidelity,  and  a  reasona- 
ble discretion.^  In  fact,  the  interest  which  an  executor  or  ad- 
ministrator has  in  the  property  of  the  deceased  is  very  different 
from  the  interest  one  has  in  his  own  property  ;  for,  as  the  old 
writers  state  the  point,  an  executor  or  administrator  has  his  es- 
tate as  such  in  aiUer  droit  merely,  viz.,  as  the  minister  or  dis- 
penser of  the  goods  of  the  dead.^ 

§  243.    Identity  of  Assets  should  be  preserved  apart  from  the  Rep- 
resentative's  Private  Funds,  so  as  to  preserve  the  Title    Intact.  — 

So  long  as  the  property  of  the  estate  is  kept  distinguishable 
specifically  from  the  mass  of  his  own,  the  executor  or  adminis- 
trator will  not  by  his  bankruptcy  or  insolvency  pass  the  title  to 
his  assignees  ;  ■♦  nor  does  bankruptcy  of  itself  affect  his  repre- 
sentative character,  though  it  might  perhaps  afford  good  ground 
for  seeking  his  removal  from  the  trust. s  Nor  can  goods  and 
chattels  which  may  be  identified  as  belonging  to  the  decedent's 
estate  be  taken  in  execution  for  the  debt  of  the  executor  or 
administrator.^  Nor  upon  the  death  of  the  personal  represen- 
tative will  such  property  held  in  another's  right  devolve  in  title 
upon  his  own  representative,  or  pass  under  the  provisions  of  his 
will.7 


'  Smith  V.  Dunwoody,  19  Ga.  238.  "  Wms.  Exrs.  637,  638;  11  Mod.  138; 

'^  The   precise  legal  standard  of   re-  Farr  v.  Newman,  4  T.  R.  648. 

sponsibility  is  considered  in  c.  3, /^j-/.  'Wms.    Exrs.    638;    §    154,    supra. 

'9    Co.  88    b;    2    Inst.   236;   Wms.  Where  a  lease  is  made  with  proviso  for 

Exrs.  636.     The  usual  consequences  as  forfeiture  and  re-entry  if  the  lessee  "  or 

to  property  held  in  auier  droit  attach ;  his    executors,    administrators,    or   as- 

thus,  at  common  law,  the  goods  of  the  signs  "    shall    become    bankrupt,    the 

deceased  were  not  forfeited  by  attainder  bankruptcy  of  the  executor  or  adminis- 

of  the  executor  or  administrator,  nor  trator  will  operate  accordingly.     Doe  v. 

applicable  to  debts  which  the  represen-  David,  i  Cr.  M.  &  R.  405. 

tative  owed  to  the  crown,     i  Hale,  P.  ^  Farr    v.    Newman,    4    T.    R.   621 ; 

C.  251 ;  Wentw.  Off.  Ex.  194,  14th  ed. ;  Wms.  Exrs.  640. 

Wms.  Exrs.  636.  ^  Wms.     Exrs.    639,    644 ;    2    Plowd. 

525- 
335 


§   244  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

So,  if  an  executor  or  administrator  make  transfer  of  all  his 
goods,  or  release  all  his  demands  and  rights  of  action,  the  pre- 
sumed intention,  and  consequently  the  effect,  is  that  the  trans- 
fer or  release  shall  not  operate  upon  goods,  demands,  or  rights 
of  action  which  he  has  in  his  fiduciary  capacity.'  Marriage,  too, 
even  under  the  old  law  of  coverture,  did  not  vest  in  the  hus- 
band a  title  to  goods  and  chattels  which  belonged  to  his  wife  in 
aiUer  droit  j^ 

But  if  the  representative  mingle  the  goods,  rights,  and  effects 
of  the  intestate  with  his  own,  in  such  a  manner  that  they  can- 
not be  distinguished,  the  effect  must  necessarily  be  to  subject 
the  whole  to  a  devolution  of  title  in  favor  of  his  assignee  in 
bankruptcy,  execution  creditor,  or  personal  representative,  as 
the  case  may  be.  There  is  quite  commonly  a  partial  mingling 
of  the  trust  funds  with  one's  own  ;  as  in  case  of  the  loose  cash, 
specie,  or  bank  bills  found  about  a  decedent,  which  a  represen- 
tative will  for  convenience  mix  with  his  own  money.^  In  the 
course  of  administration,  the  executor  or  administrator  almost 
necessarily  pays  out  sums  for  expenses,  taking  property  of  the 
estate  by  way  of  recompense,  and  by  contract  incidentally  caus- 
ing a  transfer  of  title  to  himself.  And  it  is  a  well-established 
rule  that  if  the  representative  pays  out  of  his  own  moneys  debts 
to  the  value  of  the  personal  assets  in  hand,  he  may  apply  the 
assets  to  his  own  use  towards  satisfaction  of  his  moneys  so 
expended  ;  and  by  such  election  the  assets  become  absolutely 
his  own  property.''  Where  trust  and  individual  funds  are 
mingled,  the  estate  becomes  a  creditor  with  other  creditors  for 
its  just  balance ;  though  to  place  the  estate  in  this  precarious 
attitude  or  to  speculate  with  such  funds  is  a  breach  of  official 
duty.s 

§  244.  No  Title  is  taken  by  Representative  to  Property  held 
by  Decedent  in  Another's  Right;    Corporation,  etc.  —  The  personal 

'  1  Show.  153;  2  Ld.  Raym.  1307.  ■*  Livingston  ?'.  Newkirk,  3  John.  Ch. 

*  Co.  Lit.  351  a;   Schoul.   Dom.   Rel.     312,  318, /«■  Chancellor  Kent. 
§  86.  '  See  c.  3,  post,  as  to  management,  etc. 

3  See   Went.   Off.    Ex.   c.   7,   p.    196, 
14th  ed. ;  Wms.  Exrs.  646. 


CHAP.    I.]        representative's    TITLE    AND    AUTHORITY.         §    244 

representative  takes  no  available  title  to  personal  chattels  of  which 
the  deceased  held  possession  in  another's  right,  and  kept  so  that 
their  identity  may  be  traced.  Thus,  the  bare  fact  that  one  died 
in  possession  of  property,  as  administrator  on  another's  estate, 
will  not,  it  is  held,  enable  his  personal  representative  to  main- 
tain trover,  where  the  right  to  the  goods  in  question  has  de- 
volved upon  the  administrator  de  bonis  non  of  the  original 
intestate  owner.'  So,  too,  a  third  person  coming  into  posses- 
sion of  a  thing  bailed  among  the  dead  man's  effects,  cannot, 
though  he  be  a  coroner,  resist  the  bailor's  demand  by  setting 
up  the  title  of  the  deceased  bailee's  personal  representatives/ 
Nothing  but  the  bailee's  possible  lien  for  reimbursement,  or 
jus  tertii  can  obstruct  the  recovery  of  the  property  in  such 
cases.3 

If,  therefore,  the  representative  takes  possession  of  personal 
property  which  was  in  possession  of  his  decedent  at  the  time  of 
his  decease,  but  to  which  another  has  title,  his  exercise  of  do- 
minion is  at  his  own  peril ;  and  if  he  sells  the  property  as  his 
decedent's,  he  is  individually  liable  in  trover  to  the  true  owner 
for  its  value.''  But  the  mere  possession  of  property  by  a  dece- 
dent at  the  time  of  his  death  gives  to  his  legal  representative 
the  right  to  its  possession,  as  against  third  parties  having  no 
better  right,  and  he  may  bring  trover  accordingly.^ 

The  property  of  a  corporation  in  possession  or  custody  of  a 
corporate  officer  at  his  death  follows  the  rule  we  have  just  stated ; 
such  officer's  legal  representatives  do  not  succeed  to  the  posses- 

'  Eljiott  V.  Kemp,  7  M.  &  W.  306.  public  moneys  in  his  hands  pass  to  his 

*  Smiley  v.  Allen,  13  Allen,  365.  administrator,  but  for  the  township.     It 
^Schoul.  Bailm.  §  61.                                 is  the   administrator's   duty  to  deliver 

*  Veldell  z-.  Shinholster,  15  Ga.  189;  them  up,  if  they  can  be  identified,  to 
Newsum  v.  Newsum,  i  Leigh,  86.  But  the  successor  of  the  trustee.  Rowley 
where  securities  which  came  into  exec-     v.  Fair,  104  Ind.  189. 

utor's    hands  as  assets  of    their  testa-  An  executor  of  the  estate  of  a  de- 

trix's  estate,  proved  to  belong  in  fact  ceased  guardian,  into  whose  hands  the 

to  her  husband's  estate,  after  they  had  ward's  money  comes,  holds  it,  as  did 

been  appr'opriated  by  the  executors  in  the  guardian,   in   trust    for  the  ward ; 

the  proper  discharge    of   their    duties,  such  a  fund  is  not  general  assets  of  the 

without  notice,  they  were  protected  in  testator's  estate.     Bloxham  v.  Crane,  19 

equity.     Mulford  v.  Mulford,  40  N.  J.  Fla.  163.     See  further  174  111.  96. 

Eq.  163;  cf.  39  Hun  (N.  Y.)  348.  '  Cullen  v.  O'Hara,  4   Mich.  132. 
Where  a  township  trustee  dies,  the 

22  337 


§   246  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

sion  and  control.'  And  if  a  representative  cannot  deal  v^ith  the 
real  estate  of  the  deceased,  still  less  can  he  meddle  with  lands 
held  by  decedent  merely  in  a  trust  capacity.^ 

§245.  Representative  does  not  succeed  to  Decedent's  Trusts, 
but  should  close  the  Accounts. —  Nor,  again,  does  the  represen- 
tative succeed,  by  virtue  of  his  office,  to  any  trust  exercised  by 
the  decedent  during  his  life ;  but  his  duty  is  to  render  a  final 
account  closing  up  the  trust,  as  respects  the  deceased,  to  see  that 
the  estate  of  the  deceased  is  properly  reimbursed  for  all  charges 
and  expenditures  properly  incurred,  and  relieved  of  all  further 
responsibility.  Should  there  remain  any  surplus  or  further  du- 
ties to  be  discharged  under  the  trust,  he  should  transfer  the 
fund  to  the  proper  successor  in  the  trust,  and  leave  him  to  per- 
form all  further  functions  relative  thereto.^  Hence  the  admin- 
istrator of  an  assignee  in  trust  for  creditors  is  not  bound  in 
continuance  of  the  trust  to  superintend  the  trust  property,  nor 
is  it  strictly  proper  for  him  to  do  so.-* 

But  in  the  sense  of  a  contract  right  or  obligation  in  the  de- 
ceased, it  may  be  said  that  trusts  or  incumbrances  connected 
with  personal  property  which  come  as  assets  into  the  repre- 
sentative's hands  devolve  properly  upon  him  where  no  regular 
successor  in  a  trust  is  called  for.'' 

§  246.  How  one  ceases  to  hold  Assets  as  Representative,  so 
as  to  hold  in  his  Individual  Character ;  Election,  etc.  —  The  doc- 
trine of  merger  sometimes  operates  in  the  case  of  an  executor 
or  administrator  who,  ceasing  to  hold  in  that  character  becomes 
holder  of  assets  in  his  own  right.*^     But  the  possession  of  the 

'  Belton,    Re,    47     La.     Ann.     1614.  to  deliver  over  the  trust  property  of  the 

Stockholders  should  see  that  corporate  original  testator's  e.state  except  to  the 

officers  succeed  to  such  trust.     lb.  court  or  a  newly  appointed  representa- 

As     to     partnership     property,     see  tive.     5  Dem.  305. 

§§325,326,379.  ••Bowman   v.   Raineteau.x,    i    Hoffm. 

^Sullivan  v.   Lattimer,  35  S.  C.  422;  150. 

§§212-215;  §§509-517.  'Marjarum  v.   Orange    Co.,   37    I'"la. 

3  See  Little  v.  Walton,  13   Penn.  St.  165. 

164.     Under  the  New    York    code  an  '' Wms.  Exrs.  641-643 ;   Pre.st.  Conv, 

executor's  executor  cannot  be  required  310,  311. 


CHAP.    I.]       representative's    TITLE    AND    AUTHORITY.        §   247 

property  of  a  deceased  person,  as  executor  or  administrator  merely, 
cannot  invest  the  possession  with  rights  independent  of  and  dis- 
connected with  the  trust  estate."  And  to  determine,  in  general, 
when  one  ceases  to  hold  property  belonging  .to  the  estate,  as  a 
fiduciary,  and  holds  it  in  his  individual  or  other  inconsistent 
character,  all  the  circumstances  of  the  case  must  be  regarded.^ 
Election,  as  to  his  character  or  its  change,  by  the  person  who 
has  different  characters  to  sustain,  becomes  an  essential  fact  in 
any  such  connection.  One  who  is  administrator  of  two  estates, 
may  elect,  it  is  held,  to  which  of  the  two  certain  property  be- 
longs ;  but  the  act  manifesting  such  election  on  his  part  must 
be  definite,  clear,  and  certain,  to  estop  him  afterwards  from 
asserting  title.^ 

§  247.  Devolution  of  Title  where  the  Personal  Representative 
is  also  Guardian  of  Decedent's  Children,  or  Trustee  under  the  Will. 

—  To  proceed  with  this  line  of  inquiry.  Administrators  are 
not  guardians  of  the  decedent's  minor  children,  and  cannot 
incur  a  fiduciary  liability  on  such  children's  account  ;*  and  the 
same  holds  true  of  executors,  save  so  far  as  the  testator's  will 
may  have  invested  them  with  the  practical  functions  of  a  testa- 
mentary guardian ;  for  guardianship  is  a  separate  trust  and 
should  not  be  blended  with  that  of  administration. s  Nor  is  it 
within  the  line  of  the  ordinary  duty  and  authority  of  an  executor 
or  administrator  to  control  property  of  widow  and  children,  or 
to  apply  ordinary  assets  in  his  hands  for  maintenance  and  edu- 
cation.^ 

Thus,  the  same  person  may  be  constituted  executor  under 
the  parent's  will,  or  administrator,  and  also  guardian  of  the 
minor  children  ;  hence  the  question,  whether  he  holds  a  fund  in 

'  Gamble  v.   Gamble,    1 1    Ala.    966,  Davis  v.  Davis,  63  Ala.  293.     Nor  can 

975 ;  Weeks  v.  Gibbs,  9  Mass.  76.  the  executor  or  administrator  be  sued 

^  Wms.  Exrs.  643.  as  such  for  maintenance  of  the  minor 

'  McClane  z/.  Spence,  11  Ala.  172;  6  children    of    the    deceased.      Kent   v. 

Ala.  894.  Stiles,  2  N.  J.  L.  368.     And  as  to  the 

^  Menifee  z;.  Ball,  7  Ark.  520;  Stalls-  widow's    necessaries,   see   Sieckman  v. 

worth  V.  Stallsworth,  5  Ala.  144.  Allen,  3  E.  D.  Smith  (N.  Y.)  561.     See 

'  Schoul.  Dom.  Rel.  §  324.  §  447,  as  to  allowances  to  widow,  chil- 

*  Wright   V.    Wright,    64     Ala.     88 ;  dren,  etc. 

339 


§    247  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

one  or  the  other  capacity.'  The  presumption  arises,  where 
personal  estate  of  the.  decedent  is  to  be  transferred  by  way  of 
legacy  or  distribution  in  favor  of  such  minor  children,  that  one 
is  executor  or  administrator ;  for  to  perform  the  functions  of 
administration  is  first  in  order,  and  some  distinct  act  of  transfer 
is  preliminary  to  fixing  the  liability  of  guardian.  Passing  the 
final  accounts  of  administration  properly,  this  transfer  of  re- 
sponsibility becomes  manifest  enough  ;  -  but  where  accounts  are 
not  rendered  by  the  fiduciary,  circumstances,  and  often  slight 
ones,  after  a  long  lapse  of  time,  may  conclude  the  question. 
And  the  better  opinion  appears  to  be,  that  where  a  sole  repre- 
sentative is  at  the  same  time  guardian,  the  law  will  adjudge  his 
ward's  proportion  of  the  estate  to  be  in  his  hands  as  guardian 
after  the  full  expiration  of  time  fixed  for  the  settlement  of  the 
estate.'  On  legal  principle,  one  ought  not  to  be  sued  both  as 
executor  or  administrator  and  as  guardian,  nor  should  both  sets 
of  sureties  be  held  responsible  for  the  fund  ;  but  in  doubtful 
cases  of  this  kind,  where  the  principal's  delinquency  has  occa- 
sioned the  doubt,  the  modern  inclination  is  to  let  the  ward  sue 
both  sets  of  sureties,  leaving  them  to  adjust  their  equities 
among  themselves.'' 

Similar  considerations  apply  to  the  case  of  an  executor  who 
has  likewise  been  constituted  trustee  under  the  will ;  though 
here,  ])erhaps,  the  regular  qualification  with  procurement  of  letters 

'  Schoul.   Dom.  Rel.  §  324  ;  Wren  v.  ^  Watkins  v.  vState,  4  Gill  &  J.  220; 

Gayden,    i  How.  (Miss.)  365  ;  Johnson  Karr  v.   Karr,  6   Dana,   3 ;   Crosby  v. 

T.  Fuquay,  i  Dana,  514.     The  adminis-  Crosby,    i    S.  C.  N.  s.  337;  Wilson  v. 

tratrix  of  a  mortgagor    received   addi-  Wilson,  17  Ohio  St.  150;  Townsend  ». 

tional  advances  from  the  mortgagee  on  Tallant,  t,;^  Cal.  45;  Wood,  Re,  71  Mo. 

security  of  the  land;  this  security  did  623;  Weaver  v.  Thornton,  63  Ga.  655; 

not  bind  her  ward,  the  infant  son,  who  Carrol  ?•.  Bosley,  6  Verg.  220.     But  the 

was   not  shown  to  have   received   any  rule  may  be  otherwise  with  co-executors 

benefit  from  the  advances.     Percival  ?'.  or  co-administrators.    Watkins  7^  State, 

Gale,  40  N.  J.  Eq.  440.  4  f  Jill  &  J.  220 ;  Coleman  v.  Smith,  14 

'  Schoul.  Dom.  Rel.  §  324;   Alston  ?'.  S.  C^.  51 1.     And  see  Schoul.  Dom.  Rel. 

Munford,  i  Brock,  266  ;   Burton  v.  Tun-  §  324. 

nell,  4  Harring.  424;  Stillman  !».  Young,  ^  Harris  z/.  Harrison,   78   N.  C.  202; 

16   111.318;   Scott's  Case,   36  Vt.  297.  Perry  z-.  Carmichael,  95   111.   519;  Mer- 

But  see  Conkey  ?•.  Dickinson,  13  Met.  ket  v.  Smith,  ;^2  K.an.  66. 
5'- 


CHAP.    I.]        REPRESENTATTVE's    TITLE    AND    AUTHORITY.      §    2^Ja 

which  fixes  the  character  of  the  latter  fiduciary  is  more  Hkely 
to  be  postponed  to  the  final  accounting  and  settlement  of  the 
estate  than  in  the  case  of  a  guardianship.  One  should  not  be 
made  liable  as  trustee  for  funds  which  came  to  his  hands  as 
executor ;  but  after  the  lapse  of  a  considerable  period  the  pre- 
sumption may  fairly  be  that  the  estate  has  been  fully  adminis- 
tered by  the  executor,  and  a;ccordingly  that  the  funds  are  held 
by  him  in  the  new  character.'  But  until  something  has  been 
done  whereby  the  executor's  status  is  changed,  so  that  he  be- 
comes a  trustee,  such,  for  instance,  as  a  payment  over  or  allot- 
ment or  credit  of  the  trust  fund,  and  a  new  account  opened  in 
that  capacity,  he  may  be  removed  as  an  executor  for  his  miscon- 
duct, and  compelled  to  pass  the  assets  over  to  his  successor.^ 
After  so  alloting,  crediting,  or  paying  over  the  trust  fund,  how- 
ever, and  still  more  so  if  he  qualifies  as  trustee  and  charges  him- 
self with  the  fund  in  his  new  character  of  trustee,  he  and  his 
sureties  are  liable  accordingly.^ 

The  intent  to  create  a  trust  under  a  will  may  be  gathered 
from  the  scope  of  the  instrument  aside  from  technical  words ; 
and  where,  consequently,  the  duties  imposed  are  active  so  as  to 
render  the  possession  of  the  estate  convenient  and  reasonably 
necessary,  the  executors  will  be  deemed  trustees  for  the  per- 
formance of  their  duties  to  the  same  extent  as  though  declared 
to  be  so  by  the  most  explicit  language.-* 

§  2^ya.  Executor  sometimes  acts  as  Trustee.  —  In  case  there  is 
a  money  fund  with  income  payable  for  certain  purposes  while 
the  capital  is  to  be  retained,  and  no  trustee  is  named  under  the 
will,  the  executor  is  sometimes  allowed  to  hold  the  fund,  and 
administer  so  simple  a  trust  without  any  other  express  appoint- 
ment.5  But  no  executor  is  justified  in  retaining  assets  in  his 
own  hands  regardless  of  a  proper  trustee.^ 

'  Jennings  z'.  Davis,  5  Dana,  127.  cases  cited;  Scott    v.    West,    63    Wis. 

^  Hood,  He,  104  N.  Y.  103.  529. 

^  Crocker  v.  Dillon,  133  Mass.  91  ;  '  See  White  v.  Massachusetts  In- 
Prior  r/.  Talbot,  10  Cush.  I  ;  161  Mass.  stitute,  171  Mass.  84;  17  Pick.  182, 
188.  183. 

*  Ward  V.  Ward,  105   N.  Y.  68,  and  °  See  189  Penn.  St.  150. 


§   251  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  24S.  Devolution  of  Title  where  Representative  is  also  a  Leg- 
atee or  Distributee. — An  executor  who  is  also  a  legatee  may,  by- 
assenting  to  his  own  legacy,  vest  the  bequest  personally  in  him- 
self ;  and  so  may  an  administrator  who  is  also  a  distributee  ap- 
propriate his  own  share  by  acts  and  conduct  manifesting  such 
assent.  The  acquisition  of  an  individual  title  to  particular  as- 
sets, in  pursuance  of  such  an  intention,  may  be  evinced  by  writ- 
ings, duly  executed  with  the  other  legatees  or  distributees ; 
though  such  formality  is  not  necessary,  if  the  actual  appropria- 
tion be  otherwise  manifested  by  the  circumstances.' 

§  249.  Devolution  of  Title  where  Executor  is  also  Residuary 
Devisee  and  Legatee.  —  An  executor  who  is  residuary  devisee  and 
legatee,  and  gives  bond  for  the  payment  of  debts  and  legacies, 
becomes  absolute  owner  of  the  real  and  personal  estate,  subject 
to  that  fiduciary  obligation,  and  may  sell  or  otherwise  dispose  of 
it  so  as  to  give  a  corresponding  title. - 

§  250.  Executor  should  administer  Estate  undisposed  of  under 
the  Will  where  there  is  a  Partial  Intestacy.  —  It  is  the  right  and 
duty  of  the  executor  to  administer  upon  estate  undevised  or 
undisposed  of  under  the  will,  where  there  is  a  partial  intestacy, 
as  well  as  to  execute  the  will  itself  ;  and  this  he  may  do  ex  officio 
without  procuring  letters  of  administration  for  that  purpose,^ 
being  in  such  a  sense  considered  trustee  for  the  next  of  kin. 

§251.  Right  and  Duty  of  discharging  Contract  Liabilities,  etc., 
of  Deceased.  —  To  the  personal   representative  belongs  the  con- 

'  Elliott  V.   Kemp,  7   M.  &  W.  313;  557;    Lander.s  v.   Stone,  45   Ind.  404; 

legacies, /£?.)■/;  Wms.  Exrs.  649.  Farris  v.  Cobb,  5  Rich.  Eq.  45c;  Vena- 

*  Clarke  v.  Tufts,  5   Pick.  337.     The  ble  v.   Mitchell,   29  Ga.  566 ;  Dean  v. 

fact  that  the  administrator  and  the  heir  Biggers,  27  Ga.  73.     Whether  this  rule 

are  the  same  person  does  not  make  it  applies  to    an   administrator   with   the 

less  the  administrator's  duty  to  plead  will  annexed,  see  §  407, /oj/.     The  local 

limitations  in  bar  to  a  suit  for  a  debt  statute  is  sometimes  explicit  as  to  the 

due  the  estate,  when  another  creditor  rule   stated   in   the    text.     Venable  v. 

may  be  injured  by  his  failure  to  do  so.  Mitchell,  supra. 
Smith  V.  Pattie,  Si   Va.  654.  See  as  to  the  effect  of  appointing  an 

'  Hays  r.  Jackson,  6  Mass.  149;   152  administrator    in    such    cases,   Patten's 

Mass.  24:    Wilson  v.   Wilson,  3   Binn.  Appeal,  31  Penn.  St.  465. 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.         §   252 

trol  of  the  legal  assets ;  also  the  right,  together  with  the  duty, 
of  collecting  all  claims  and  discharging  all  liabilities  of  the  de- 
cedent. As  a  general  rule,  the  personal  representative  may,  in 
his  discretion,  perform,  or  rescind  or  modify  with  the  consent  of 
the  other  party,  any  contract  made  personally  by  the  deceased ; 
this,  however,  conformably  to  the  law  of  contracts,  and  for  the 
reasonable  interest  of  the  estate.'  He  may,  as  the  law  at  the 
present  day  stands,  compromise  a  lawsuit,  buy  the  peace  of  the 
estate  he  represents,  and  extinguish  doubtful  claims  against  it, 
provided  he  act  discreetly  and  in  good  faith.^  For  the  repre- 
sentative takes  the  place  of  the  decedent  as  to  all  contracts  on 
which  the  latter  was  bound  at  his  death,  and  is  expected  to  dis- 
charge them  in  the  manner  provided  by  law,  or  according  to  the 
means  in  his  hands  for  properly  liquidating  all  of  the  decedent's 
obligations.^  And  yet  the  executor  or  administrator  has  no  in- 
herent power  to  bind  the  estate  or  those  interested  in  it,  by  spe- 
cial agreement  with  a  creditor,  to  keep  open  indefinitely  the 
adjustment  of  his  demand  ;  *  nor  to  impose  onerous  charges  upon 
the  estate ;  5  nor  to  make  a  specific  transfer  of  assets  at  discre- 
tion, so  as  to  create  an  unlawful  preference  among  creditors,^  or 
defraud  others  interested  in  the  estate  of  their  just  rights.^  He 
must  appropriate  the  assets  honestly  and  discreetly  to  the  pur- 
poses and  in  the  manner  prescribed  by  law  for  the  administra- 
tion, settlement,  and  distribution  of  estates  of  the  dead.** 

§  252.  Avoidance,  etc.,  of  Contracts  of  the  Deceased  Illegally 
made,  etc.  —  The  representative  may  avoid  or  dispute  a  contract, 
made  by  his  testate  or  intestate,  as  having  been  illegal,  corrupt, 
and  contrary  to  good  morals  or  public  policy,  or  as  entered  into 
when  the  decedent  was  of  unsound  mind.^  In  general  he  may 
set  up  such  pleas  in  defence  as  were  open  to  his  decedent ;  and 

'  Gray  z/.  Hawkins,  8  Ohio  St.  449;  ^  Gayle,  Succession  of,  27  La.  Ann. 

Dougherty  v.  Stephenson,  20  Penn.  St.  547. 

210;  Laughlin  v.  Lorenz,  48  Penn.  St.  ^  Gouldsmith  z/.  Coleman,  57  Ga.  425. 

275;  Davis  V.  Lane,  11  N.  H.  512.  ^  Brown  v.  Evans,  15  Kan.  88. 

*  Meeker  v.  Vanderveer,   15  N.  J.  L.  ^  Of.  §  245. 

392,/ifr  Hornblower,  C.  J.  ^  Eubanks   v.    Dobbs,    4    Ark.    173; 

^  Woods  V.  Ridley,  27  Miss.  119.  Sanford,  J.,  in  Ross  v.  Harden,  44  N.  Y. 

*  Collamore  z/.  Wilder,  19  Kan.  16.         Super.  26. 

343 


§    25  3  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 

out  of  regard  to  the  interests  he  represents,  he  may  even  take 
advantages  and  set  up  defences  from  which  the  decedent  by  his 
own  acts  might  have  been  precluded.'  Where,  however,  an  ex- 
ecutor or  administrator  who  might  disavow  his  intestate's  act  on 
good  ground,  ratifies  and  receives  the  benefit  of  it,  he  cannot 
afterwards  disavow  it.^ 

While  a  personal  representative  cannot,  as  a  rule,  impeach  as 
fraudulent  a  transaction  of  the  decedent  in  his  lifetime,  this  rule 
is  out  of  regard  for  creditors  especially,  as  already  seen,  liable  to 
exceptions.^ 

§  253.  Contracts  Personal  to  the  Deceased,  etc.,  distinguished 
from  those  requiring  Performance  after  his  Death.  —  There  may  be 

contracts  of  the  deceased  which  are  designed  to  extend  beyond 
his  lifetime,  and  whose  breach  of  fulfilment  will  involve  the  estate 
in  damages  ;  contracts,  too,  whose  effect  is  to  encumber  lands 
devised  or  the  residuary  fund.^  All  contracts  of  the  decedent, 
however,  are  to  be  construed  with  reference  to  their  subject- 
matter  ;  and  hence,  a  contract  to  perform  certain  duties  growing 
out  of  an  existing  personal  relation,  or  requiring  the  exercise  of 
a  personal  skill  and  taste,  ceases  to  be  binding  when  death  ter- 
minates that  relation,  and  the  representative  cannot  be  compelled 
to  continue  the  performance.^ 

Subject  to  the  exceptions  just  noticed,  the  death  of  one  of 
two  contracting  parties  does  not  necessarily  terminate  the  con- 
tract, and  his  estate  may  be  held  liable  in  damages  for  any  breach 

'  See  §  220  as  to  recovering  property         ^  Riley  v.  Albany  Savings  Bank,  36 

fraudulently  transferred   by   the   dece-  Hun,  513. 
dent.     An  oral  contract  made  with  the         ^  See  §  220. 

decedent  to  hold  the  custody  of  certain         "■  See  Pringle  v.  McPherson,  2  Desau. 

assets  after  his  death,  subject  to  some  524. 

contingency,  such  as  the  arrival  of  A.         '  Bland  za  Umstead,  23  Penn.  St.316 

from  abroad,  cannot,  it  would  appear,  i  Par.  Contr.  6th  ed.  131  ;  Siboni  z'.  Kirk 

be  set  up  to  the  detriment  of  an  execu-  man,  i  M.  &  W.  418 ;  Wms.  Exrs.  1725 

tor's  or  administrator's  right  to  demand  Smith  v.  Wilmington  Coal  Co.,  83  111 

possession  upon  his  qualification.     Ross  498;  McGill  z/.  McGill,  2  Met.  (Ky.)  258 

V.  Harden,  44  N.  Y.  Super.  26.     As  to  Andseec.  5, /('j-/,  as  to  the  responsibility 

a  transfer  upon  usury,  see  98  Ga.  1 39.  of  an  executor  or  administrator. 

344 


CHAP.    I.  I        REPRESENTATIVES    TITLE    AND    AUTHORITY.         §    25.4. 

committed  after  as  well  as  before  his  death."  And  if  a  contract 
with  a  deceased  party  is  of  an  executory  nature,  and  his  personal 
representative  can  fairly  and  sufficiently  execute  all  that  the 
deceased  could  have  done,  he  may  do  so,  and  enforce  the  con- 
tract.^ How  all  this  shall  be  done  becomes  a  matter  for  the 
exercise  of  fidelity  and  due  business  discretion  on  the  representa- 
tive's part,  aided,  if  need  be,  by  the  advice  or  authority  of  the 
court  or  of  those  interested  in  the  estate  and  its  surplus.  Thus 
the  e.xecutor  or  administrator  of  a  manufacturer  or  artisan  may 
well  have  materials  worked  up  into  goods  fit  for  merchandise. 
The  representative  of  a  mechanic  may  finish  up  the  jobs  on 
which  he  was  engaged  ;  all  this,  supposing  that  what  was  left  by 
the  deceased  may  properly  be  finished  by  others,  and  at  a  reason- 
able hope  of  profit  to  the  estate,  which  might  otherwise  be  liable 
in  damages  as  for  breach  of  contract.^ 

§  254.  Personal  Liability  of  the  Representative  upon  the  De- 
cedent's Debts  or  Contracts.  —  At  common  law,  if  an  executor  or 
administrator  undertakes  to  perform  the  contract  of  the  dece- 
dent, it  is  upon  his  own  personal  responsibility,  so  that  if  losses 
are  sustained  he  must  bear  them,  while  if  profits  are  realized 
they  become  assets  in  his  hands  for  the  benefit  of  the  estate.'' 
Equity  and  modern  probate  courts  regard  the  question  of  hon- 
esty and  due  discretion  on  his  part  in  passing  upon  the  repre- 
sentative's accounts  afterwards.  But  this  is  only  so  far  as 
relates  to  charging  him  with  reference  to  the  assets  in  his  hands  ; 
and  his  personal  liability  may  transcend  the  limit  of  the  means 
at  his  command  where  he  contracts  without  a  careful  reservation 
in  that  respect.  For,  though  a  bare  promise  by  the  executor  or 
administrator  binds  only  the  assets,  the  true  doctrine  is  that  he 
may  make  himself  personally  liable  by  his  written  promise, 
founded  upon  a  sufficient  consideration-^ 

'  Smith  V.  Wilmington  Coal  Co.,  83  *  Smith  v.  Wilmington  Coal  Co.,  83 

111.498.     See  40  Mich.  226.  111.  498;    Mowry  r/.  Adams,    14  Mass. 

nb;  c.  5,/o.f/.  327. 

'Marshall!/.  Broadhurst,  I  Cr.  &  Jerv.  ^  \Ynis.    Exrs.    1776,    and    Perkins's 

405;    Garrett    v.    Noble,    6    Sim.    504;  note;    Davis   v.    French,    20    Me.    21; 

Wms.  Exrs.  1794.  Ellis  r.  Merriman,  5  B.  Mon.  296. 

345 


§   255  EXECUTORS    AND    ADMINISTRATORS.  [pART   IV. 

§  255-  The  same  Subject;  how^  such  Liability  is  incurred; 
Statute  of  Frauds  ;  SufiBcient  Consideration,  etc.  —  Let  US  dwell 
briefly  upon  this  point  of  a  written  contract  by  the  representa- 
tive founded  in  sufficient  consideration.  In  both  England  and 
the  United  States  the  executor's  or  administrator's  promise  to 
pay  a  debt  or  to  answer  for  damages  of  his  decedent  will  not,  it 
is  held,  render  him  personally  liable  unless  there  was  a  sufificient 
consideration  to  support  the  promise  ;  for  a  bare  promise  charges 
him,  not  out  of  his  own  estate,  but  only  in  a  representative 
capacity  and  to  the  extent  of  the  assets  in  his  hands,  just  as 
though  he  had  made  no  promise.'  A  bare  promise,  there  being 
no  assets  at  all,  is,  therefore,  nudum  pactum;  and  so  is  any 
promise  made,  by  one  having  no  actual  or  potential  representa- 
tive character,  to  pay  a  dead  person's  debts.^  Under  the  Stat- 
ute of  Frauds,  such  collateral  promises  to  bind  one  individually 
should  be  made  in  writing  ;  ^  and,  moreover,  on  general  principle, 
there  should  either  be  a  seal  to  import  a  consideration  or  else 
an  actual  good  consideration  for  the  promise.  A  verbal  prom- 
ise, therefore,  of  the  representative  to  pay  his  decedent's  debt 
may  be  void  as  without  consideration  or  void  under  the  Statute 
of  Frauds  as  not  reduced  to  writing.* 

'  Wms.  Exrs.   1776;  Reech  v.   Ken-  charged  therewith,  or  some  other  per- 

negal,    i    Ves.    Sen.     126 ;    Nelson    v.  son  thereunto  by  him  lawfully  author- 

Serle,  4  M.  &  W.  795.     But  see  Ridout  ized.    The  word  "agreement  "  here  used 

V.  Bristow,  I  Cr.  &  J.  as  to  the  promise  has  in  England  been  held  to  mean  that 

by  a  widow.      Also  Templeton  t'.  Bas-  the  consideration  of  the  promise  as  well 

com,  33  Vt.  132,  as  to  the  promise  by  as  the  promise  shall  be  expressed    in 

sole  distributee.  writing,    or  readily   gathered   from   it. 

^Tomlinsonz/.  Gill,  Ambl.  330.  Wms.  Exrs.   1784;    Wain  f.  Warlters, 

^29  Car.  II.  c.  3,  whose  provisions  are  5  East,  10.      But  while  in  some  of  the 

enacted  in  all  or  most  American  States,  American    cases    the    English    rule   of 

declares  that  no  action  shall  be  brought  construction  is  applied  to  corresponding 

to  charge  any  executor  or  administrator  local   enactments,   others   construe  the 

upon  any  special    promise   to   answer  language   differently,  and  the  modern 

damages  out  of  his  own  estate,  or  to  tendency  appears  to  be  against  requir- 

charge  the  defendant  upon  any  special  ing   the   consideration  as  well   as   the 

promise  to  answer  for  the  debt,  default,  promise   to    be   so    plainly   expressed, 

or  miscarriage  of  another  person,  etc.,  Wms.  Exrs.  1784,  note  by  Perkins;  i 

unless  the  agreement  upon  which  such  Chitty  Contr.  nth  Am.  ed.  92. 

action  shall  be  brought,  or  some  memo-  ■'Sidle  v.  Anderson,  45  Penn.  St.464; 

randum    or    note   thereof   shall    be   in  Wms.  Kxrs.  1776 ;  Walker  z/.  Patterson, 

writing  and  signed  by  the  party  to  be  36  Me.  273;  Winthrop  v.  Jarvis,  8  La. 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.        §    256 

Apart  from  any  statute  requirement  that  the  consideration 
itself,  as  well  as  the  rest  of  the  agreement,  should  be  expressed 
in  writing  (a  point  concerning  which  English  and  American 
authorities  do  not  quite  harmonize),  a  sufficient  consideration 
for  such  promise  arises  where  the  creditor  forbears  to  sue  the 
executor  or  administrator  ;  and  forbearance  to  sue  is  in  various 
instances  held  to  be  a  good  consideration,  and  not  within  the 
statute,  even  though  there  were  no  assets  at  the  time  of  the 
promise."  So,  too,  having  assets  is  a  good  consideration, 
according  to  various  modern  authorities,  for  the  executor's  or  ad- 
ministrator's promise  to  pay  a  debt  or  claim  which  the  decedent 
owed  ;  this  being,  perhaps,  a  sort  of  equitable  enlargement  of 
the  old  rule  on  this  subject  out  of  regard  to  the  superior  knowl- 
edge which  every  representative  should  possess  as  to  the  means 
at  his  disposal  for  paying  demands  upon  the  estate ;  so  that, 
having  assets  and  promising  in  writing,  the  representative  be- 
comes personally  bound. ^ 

§  256.  The  Representative's  own  Creation  of  a  Debt  binds  Him- 
self and  not  the  Estate.  —  And  here  we  should  observe  that  an 
executor  or  administrator  has  no  power  in  such  capacity  to  cre- 
ate a  debt  against  the  deceased.  He  may  clearly  have  intended 
to  do  so ;  but  the  effect  of  such  an  engagement  is,  instead,  to 
bind  himself  individually  on  the  assumed  faith  that  the  assets 
he  controls  will,  subject  to  the  rules  of  administration  which  he 
is  bound  to  observe,  furnish  ample  indemnity  to  himself  for  in- 
curring the  risk.  Ordinarily,  debts  contracted  by  the  personal 
representative  are  obligatory  only  as  personal  obligations,  and 
cannot,  primarily,  bind  the  estate  committed  to  him  or  charge 
specifically  the  corpus  of  the  assets ;  these  assets  being  prima- 
rily bound  rather  for  the  debts  which  the  deceased  himself  con- 
Ann.  434 ;  Hester  v.  Wesson,  6  Ala.  brought,  so  that  the  forbearance  was 
415.  needless,    seinhle     the    representative's 

'i  Roll.  Abr.  15,  24;  Wms.  Exrs.  personal  promise  fails  of  such  consid 
1778-1781  ;  Hawes  z/.  Smith,  2  Lev.  122;  eration.  McElwee  v.  Story,  i  Rich.  9 
Bradley  v.  Heath,  3  Sim.  543;  Mosely  ^Wms.  Exrs.  1783;  Cowp.  284,  289 
z/.  Taylor,  4  Dana,  542.  And  see  Tern-  Reech  v.  Kennegal,  i  Ves.  Sen.  126 
pleton  V.  Bascom,  -t^t^  Vt.  132.  But  Sleighter  i'.  Harrington,  2  Murph.  332 
where, there  could   plainly   be  no  suit     Thompson  v.  Maugh,  3  Iowa,  342. 

347 


§    256  EXFXUTORS    AND    ADMINISTRATORS.  [PART   IV. 

tracted  during  his  lifetime.'  The  executor  or  administrator 
may  contract,  doubtless,  on  principle,  for  all  necessary  matters 
relating  to  the  estate  which  he  represents  ;  but  the  immediate 
and  practical  result  is  that,  a  sufficiency  of  assets  being  presumed 
as  an  element  in  the  undertaking,  he  contracts  as  upon  his  per- 
sonal responsibility  to  keep  good  that  sufficiency.  And,  not- 
withstanding the  intent  is  to  benefit  the  estate,  every  contract 
made  upon  a  new  and  independent  consideration,  moving  between 
the  promisee  and  personal  representative,  is  the  personal  contract 
of  the  latter,  binding  himself  and  not  the  estate  represented.' 

Nor  again,  is  the  estate  to  be  held  liable  for  a  tort  committed 
by  the  executor  or  administrator  ;  and  whether  suit  is  brought 
as  for  a  conversion  or  in  damages  as  for  breach  of  contract,  the 
estate  cannot  be  made  to  respond.^ 

Indeed,  the  rule  is  that  executors  and  administrators  cannot, 
by  virtue  of  their  general  powers  as  such,  make  any  contract 
which  at  law  will  bind  the  estate  and  authorize  a  judgment  de 
bonis  decedentis.  But  on  contracts  made  by  them  for  necessary 
matters  relating  to  the  estate,  they  are  personally  liable,  and 
must  see  to  it  that  they  are  reimbursed  out  of  the  assets. '*    The 

'  Ferry  z'.  Laible,  27   N.   J.   Eq.  146;  monument.     167  Mass.  577.     An  exec- 

Clopton  V.  Gholson,  53  Miss.  466 ;  Mc-  utor  or  administrator  has  no  power  to 

Farlin  v.  Stinson,  56  Ga.  396 ;  Taylor  bargain  with  an  attorney  to  give  him  a 

V.   Mygatt,   26   Conn.    184;    Austin  v.  legal  interest  in  the  estate  as  compen 

Munro,  47  N.  Y.  360 ;  Moody  v.  Shaw,  sation  for  his  services  so  as  thereby  to 

85  Ind.  88;   119  Cal.  492.  bind  the  estate.     48  Tex.  491  ;  57  Cal. 

-This  doctrine  appHes  to  the  debt  in-  238;  Austin  v.   Munro,  47   N.  Y.  360. 

curred  by  the  representative  in  employ-  His  own  allowance  from  the  court,  leg- 

ing  counsel  to  advise  and  assist  him  in  acy,  share,  or  claim  is  all  that  he  can 

the  discharge  of  his  duty.  (  Devane  z/.  thusdisposeof  under  any  circumstances. 

>Royal,  7   Jones  (N.  C.)   L.  426;)Bow-  But  as  to  compensation,  etc.,  allowable 

man  v.   Tallman,   2   Robert.  385;  Mc-  out  of  the  estate,  see /^j-/.  Part  VII,  c.  2. 

Gloin  V.  Vanderlip,  27  Tex.  366  ;  Mc-  That  an  executor  cannot  create  a  lien 

Mahon  v.  Allen,  4  E.  D.  Smith  (N.  Y.)  on  the  assets  for  a  debt  due  during  the 

519;    Briggs  V.   Breen,    123   Cal.  657;  decedent's  lifetime,  see  Ford  w.  Russell, 

Thomas  v.    Moore,   52    Ohio    St.   200.  i  Freem.  Ch.  42;  Ga.  Dec.  Part  II.  7; 

Or  where  he  purchases  goods  for  the  James's  Appeal,  89  Penn.  St.  54. 

benefit  of  the  e---tate.     Harding  &.  Evans,  ^  gtgrrett  jv.  Barker,  119  Cal.  492. 

3  Port.  221  ;  Lovell  v.  Field,  5  Vt.  218.  ■•  Pinkney  v.  Singleton,   2   Hill,  343; 

Or  where  he  borrows  money  to  pay  the  Miller  v.  WilHamson,  5  Md.  219;  Sims 

debts  of  the  estate.     119  Cal.  492.     Or  v.  Stilwell,  4  Miss.   176;  Jones  f.  Jen- 

where  he  contracts  for  a  headstone  or  a  kins,  2   McCord,  494  ;  McEldry  v.  Mc- 


CHAP.    I.]        representative's    TITIT:    AXn    AUTHORITY.         §    25/ 

addition  of  the  word  "executor"  or  "administrator"  in  such  a 
contract  is  insufficient  to  relieve  the  representative  of  this  per- 
sonal liability  ; '  for  if  it  be  understood  that  the  other  party  must 
rely  upon  the  assets  and  not  the  representative,  and  must  take 
the  risk  of  their  adequacy  upon  himself,  the  mutual  expression 
should  be  clearly  to  that  effect  ;  and  even  thus  no  lien  would 
arise  on  the  creditor's  behalf,  but  the  covenant  or  engagement 
of  the  executor  or  administrator,  limited  to  the  extent  of  assets 
in  his  hands,  would  bind  him  personally  to  that  extent.^ 

§  257-  Lien  on  the  Assets  is  for  Representative  rather  than  for 
the  Person  dealing  •with  him  ;  Estate  how  far  Answ^erable.  —  Per- 
sons, therefore,  who  deal  with  the  executor  or  administrator  act- 
ing independently  in  such  capacity,  can  acquire  no  lien  upon  or 
right  to  proceed  immediately  against  the  trust  estate  in  his 
hands.  The  executor  or  administrator  himself,  like  other  trus- 
tees, appears  to  have  a  charge  or  lien  in  his  favor  for  proper  ex- 
penses and  charges  fairly  and  reasonably  incurred  in  the  prose- 
cution of  his  trust ;  but  the  privilege  does  not  extend  to  others 
employed  by  him  or  to  whom  he,  as  executor  or  administrator, 
has  incurred  an  individual  liability  to  pay.^  This  rule,  though 
sometimes  working  harshly,  is  founded  in  sound  policy,  and 
better  ensures  a  proper  appropriation  of  the  estate  which  the 
decedent  left  behind  him.  It  enables  the  broad  maxim  to  be 
applied,  that  for  false  and  fraudulent  representations  by  the  ex- 
ecutor or  administrator,  and  upon  promises  which  he  had  no 
right  to  make,  the  property  of  the  decedent  cannot  be  held  liable, 

Kenzie,  2  Port,  t,-^;  Underwood  v.  Mil-  act  of  1866  places  contracts  by  the  rep- 

legan,  8  Ark.  254.  resentativefor  labor  and  service  for  the 

'  Hopkins  v.  Morgan,  7  T.  B.  Mon.  benefit  of  the  estate  on  the  same  footing 
I  ;(JBeaty  v.  Gingles,  8  Jones   L.  302  \\^  zs,  contracts  made  by  authority  of  law. 

Litchfield  v.  Plint,  104  N.  Y.  543.  74  Ga.  486. 

^  Nicholas  z/.  Jones,  3  A.   K.  Marsh.  ^  Wms.     Exrs.     1792;    Kirkman     v. 

385;  Allen  V.   Grafifins,  8   Watts,  397.  Boothe,  11  Beav.  273;  Corner  57.  Shew, 

A  note  made  by  an    administrator,   as  3  M.  &  W.  350;  Fitzhugh  v.  Fitzhugh, 

such,  by  which  he  promises  to  pay,  etc.,  1 1    Gratt.    300  ;   Montgomery   v.   Arm- 

for  value  received  by  the  intestate  and  strong,   5   J.    J.  Marsh.    175;    Steele  z/. 

his  heirs,  is  void  for  want  of  considera-  Steele,  64   Ala.  438;   Woods  v.  Ridley, 

tion.    Ten  Eyck  w.  Vanderpool,  8  Johns.  27  Miss.   119,    149;    Harrell  z^.  Wither- 

120.     And  see  37  Miss.  526.     Georgia  spoon,  3  McCord,  486. 

349 


§   258  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

and  that  a  creditor's  collusion  with  that  object  in  view  cannot  be 
permitted  to  operate  to  his  own  advantage.  Even  though  the 
representative  contracted  honestly  as  such,  the  estate  is  not  bound 
by  what  he  was  not  lawfully  authorized  to  stipulate,  but  he  alone 
is  bound,  however  he  may  have  described  himself.' 

But  the  estate  of  the  deceased  ought  to  be  made  responsible 
for  promises  and  engagements  made  by  the  representative,  which 
he  had  the  legal  right  to  make,  or  where  in  law  it  was  his  duty 
without  a  promise  to  do  just  what  he  had  promised  to  do.^ 
Whatever  the  methods  for  accomplishing  this,  there  are  usually 
found  some  practical  means  thus  available ;  as,  for  instance,  in 
the  case  of  funeral  charges,  and,  in  general,  as  to  creditors  of 
the  estate  so  far  as  the  assets,  properly  administered  upon  equita- 
ble principles,  may  suffice  for  their  genuine  purpose  of  satisfy- 
ing all  just  claims  upon  the  estate.  Claims  are  settled  after 
probate  rules  established  for  general  convenience,  to  be  noted 
hereafter  ;  ^  and  according  as  the  contract  arose  with  the  deceased 
or  with  the  representative  himself. 

§  258.  The  same  Subject ;  Negotiable  Notes,  etc.,  running  from  or 
to  the  Executor  or  Administrator ;  Other  Instances.  —  The  foregoing 
principles  apply  to  negotiable  instruments  which  the  representa- 
tive executes.  Thus,  the  signature  "  A.  B.,  executor,"  or  "  A.  B., 
administrator,"  to  such  paper  cannot  bind  the  decedent's  estate 
directly,  even  though  specifying  that  estate  by  name  ;  but  A.  B. 
will  be  held  personally  liable,*  It  has  been  held  that  an  indi- 
vidual liability  is  not  thus  incurred  unless  the  representative  has 
assets,  or  forbearance  was  the  consideration  ;  s  and  yet,  giving 
one's  own  obligation  expressly  payable  at  a  future  day  should 

'  Brown  v.  Farnham,  55  Minn.  27.  issory  note  be  given  in  renewal  of  a 

^  Brown  z/.  Evans,  15  Kan.  88.  matured  promissory  note  executed  by 

^  See  c.  ^tpost,  as  to  remedies,  and  his    decedent.       Cornthwaite    v.    Nat. 

the  peculiar  rule,  e.g.,  as  to  funeral  ex-  Bank,  57  Ind.  268.     And  see  Banl:ing 

penses.  Co.  z/.  Morehead,   122  N.    C.   318;  62 

*  Winter  v.  Hite,  3  Iowa,  142;  Yelv.  Minn.  459;  58  Fed.  681. 

II;    Wms.    Exrs.    1780;    Christian   v.  '  Bani<  of  Troy  t/.  Topping,  9  Wend. 

Morris,  50  Ala.  585;  East  Tenn.  Co.  v.  273.      In  s.  c.   13  Wend.  567,  it  is  ad. 

Gaskell,   2  Lea,  742.     And  see  Sieck-  mitted  that  executing  such  note  is /rma 

manz/.  Allen,  3  E.  D.  Smith  (N.  Y.)  561.  facie  evidence  of  assets. 

This  rule  applies  though  the  new  prom- 


CHAP.    I.]       representative's    TITLE    AND    AUTHORITY.        §    258 

be  regarded  as  an  admission,  perhaps  conclusive,  of  assets." 
Where  a  bill  is  indorsed  to  certain  persons  as  executors,  and 
they  indorse  it  over,  they  become  personally  liable.^  As  the 
current  of  American  decisions  runs,  an  executor  or  administrator, 
signing  or  indorsing  a  note  as  such,  does  not  escape  a  personal 
liability  thereon  unless  he  expressly  confines  his  stipulation  to 
payment  out  of  the  estate  ;  ^  nor  is  parol  evidence  competent  to 
establish  such  a  reservation,  though  the  note  be  signed  offi- 
cially.'*  A  note  payable  to  "  B.  administrator  [or  executor]  of  E.," 
is  the  property  of  B.  and  not  of  E.'s  estate.^ 

Within  the  principles  we  have  discussed,  it  may  be  asserted 
that,  while  a  bond  or  covenant  given  by  the  representative  as 
such,  whereby  he  undertakes  to  assume  whatever  may  be  his 
decedent's  debts,  binds  him  as  an  "agent,"  so  called,  who  has 
no  principal,^  a  bond  given  by  him  which  is  expressed  to  pay  out 
of  the  assets  the  balance  due  in  settlement,  will  not  bind  him 
beyond  the  assets  received.^  And  where  he  gives  his  personal 
notes  simply  in  extension  or  renewal  of  those  upon  which  his 
decedent  was  originally  responsible,  the  natural  import  of  the 
transaction  is  not  an  extinguishment  of  the  liability  of  the  estate 
to  the  creditors'  disadvantage  ;  nor  certainly,  so  as  to  deny  to 
the  representative  himself  the  means  of  securing  himself  from 
the  estate.^  Giving  his  own  note  or  obligation  for  a  debt  of  the 
decedent  will  not  in  any  case  exempt  the  estate  from  ultimate 
liability  for  the  debt.''  And  the  principle  holds  good  generally 
that  parties  who  contract  may  provide  expressly  in  their  written 
agreement  that  an  implication  which  the  law  would  otherwise 
raise  shall  not  apply. '° 

'  Thompson  v.  Maugh,  3  Iowa,  342  ;  '  Saffold  v.  Banks,  69  Ga.  289. 

Childs  V.  Monins,  2  Br.  &  B.  460.     The  *  Patterson  v.  Craig,  57  Tenn.  291. 

words  "value  received "  might    be  im-  'Allen   v.    Graffins,    8    Watts,    397. 

portant  in  this  connection.     See  i  Cr.  And  see  58  Ind.  58. 

&  J.  231.     Or  promising  to  pay  with  in-  *  Peter  v.    Beverly,    10    Pet.    532;  i 

terest.     2  Br.  &  B.  460.  How.  134;   122  N.  C.  318. 

*  Buller,  J.,  in  King  v.  Thom,  i  T.  R.  9  Douglas  v.  Fraser,  2  McCord  Ch. 
489.  See  Snead  v.  Coleman,  7  Gratt.  105;  Maraman  v.  Trunnell,  3  Met. 
300.  (Ky.)  146;  Dunne  v.   Deery,  40  Iowa, 

'  Studebaker  M.  Co.  v.  Montgomery,     251. 
74  Mo.  loi.  ■"  Thus  in  a  note  signed  as  "  executor," 

*  McGrath  v.  Barnes,  13  S.  C.  328.         which  expressly  stipulates  "as  executor 


§    259  EXECUTORS    A\0    ADMINISTRATORS.  [PAKT   IV. 

On  the  other  hand,  the  recognition  by  the  executor  or  ad- 
ministrator of  a  claim  against  the  estate,  arising  subsequent  to 
the  decedent's  death  and  upon  his  own  contract,  will  give  it  no 
additional  validity  ;  for  it  is  not  the  estate  that  shall  answer  di- 
rectly for  it  to  the  creditor,  but  the  representative  himself.' 

Supposing  some  statute  of  limitations  to  have  debarred  the 
creditor  from  prosecuting  his  claim  against  the  estate  ;  ^  a  promise 
by  the  representative  to  pay  the  claim,  if  made  in  writing,  whether 
in  the  form  of  a  negotiable  note  officially  signed  or  otherwise, 
may  bind  him  personally  upon  the  theory  of  a  sufficient  consid- 
eration founded  in  the  possession  of  assets.^ 

§  259.  Lien  on  the  Assets,  how^  far  existing  for  the  Representa- 
tive's own  Immunity.  —  The  individual  obligation  which  the  rep- 
resentative necessarily  incurs  by  assuming  to  fulfil,  even  in  the 
name  of  his  office,  engagements  of  the  decedent,  serves  as  a 
caution  against  his  assuming  too  much,  or  undertaking  more  on 
behalf  of  the  estate  he  represents  than  the  assets  at  his  com- 
mand fairly  warrant.  When,  however,  an  executor  or  admin- 
istrator pays  a  debt  or  discharges  a  contract  which  constitutes 
in  reality  a  just  charge  against  the  estate  of  the  testator  or  in- 
testate, out  of  his  private  funds,  he  will  be  entitled  to  an  allow- 
ance for  the  same  in  his  accounts  ;  and  administration  under 
probate  and  equity  direction  supplies  a  sort  of  lien  upon  the 
assets  for  his  reimbursement.'' 

This  lien  upon  the  assets,  however,  if  such  we  may  term  it, 
does  not  secure  the  representative  for  liabilities  or  expenses  in- 
curred outside  the  proper  scope  of  his  official  duty.  Thus,  if 
he  chooses  to  warrant  title  to  the  purchaser  in  selling  assets, 
the  risk  which  he  assumes  thereby  is  his  own.5     And  the  dis- 

bul  not  personally,"  the  executor  is  not  Grath  v.  Barnes,  13  S.  C.  328.     And  see 

personally  bound.   Banking  Co.  7-.  More-  Bacon  v.  Thorp,  27  Conn.  251  ;  §  255. 

head,  115  N.  C.  413.  "See  Woods  v.  Ridley,  27  Miss.  119, 

■  May  V.   May,  7  Fla.   207;  Davis  v.  149. 

French,  20  Me.  21  ;  Lyon  v.  Hays,  30  '  See  c.  post,  as  to  transfer  of  assets; 

Ala.  430;  Woods  V.    Ridley,    27  Miss.  Stoudenmeier   v.   Williamson,  29    Ala. 

ri9,  149.  558;  Lockwood  z-.  Gilson,  12  Ohio  St. 

^On  this  point,  see  post,  c.  5.  526. 

3  Gates  V.  Lilly,  84   N.  C.  643;   Mc- 


CHAP.    I.]       representative's    TITLE    AND    AUTHORITV.        §   260 

allowance  in  his  accounts  of  expenses  incurred  and  losses  sus- 
tained through  culpable  negligence  or  bad  faith  puts  a  practical 
limit  to  his  reimbursement  out  of  the  assets.' 

§  260.  This  Rule  of  Lien  applied  in  settling  Account  of  a  Rep- 
resentative Deceased,  Removed,  etc.  —  So,  too,  where  an  execu- 
tor or  administrator  pays  debts  of  the  decedent  out  of  his  own 
funds,  and  dies  or  is  removed  before  he  has  received  assets 
sufficient  to  reimburse  him,  he  or  his  own  representative  should 
be  allowed  to  stand  in  the  place  of  the  creditor  whose  demand 
has  been  extinguished,  and  to  assert  the  demand  against  the 
successor  in  his  late  trust.-  Circumstances  may  exist  in  which 
it  is  not  wrong  in  the  original  representative,  although  it  may 
not  be  a  positive  duty,  to  make  advances  for  the  benefit  of  the 
estate  which  he  administers,  and  where,  by  his  death  or  removal 
from  office,  he  may  be  unexpectedly  deprived  of  the  power  to 
reimburse  himself.  Where  advances  have  been  made  in  good 
faith,  and  for  the  benefit  of  the  estate,  they  in  some  form  become 
a  charge  upon  the  estate  in  the  hands  of  his  successor  in  the 
trust,  whose  duty  it  is  to  pay  them  as  much  as  if  they  had  oc- 
curred in  the  course  of  his  own  administration. ^  The  safer  and 
the  usual  course,  however,  is  for  an  executor  or  administrator  to 
advance  nothing  and  incur  no  expenditure  or  charge  beyond  the 
value  of  chattels  in  hand,  or  assets  as  actually  realized  ;  thus  rely- 
ing simply  upon  his  lien  to  reimburse  himself,  or  else  his  con- 
temporaneous appropriation  of  chattels  instead,  by  way  of  elec- 
tion ;  in  which  case  the  final  settlement  of  his  accounts  involves 
a  mere  transfer  of  the  just  balance  or  residue  to  the  successors, 
and  avoids  the  disadvantage  of  an  active  pursuance  of  remedies 
against  the  latter.'* 


'  See  c.  S^jfiost,  as  to  the  representa-  the  administrator  o'^  (5<?«w  non  on  behalf 

tive's  liabilities;   also  post,    Part   VII.,  of  the  original  representative,  although 

concerning  his  accounts.  the  amount  due  had  been  ascertained 

^  Smith  z/.  Haskins,  7  J.  J.  Marsh.  502  ;  on  presentation  of  the  latter's  accounts. 

Munroe  v.  Holmes,  9  Allen,  244.  But   proceedings  in  the  probate  court 

'Hoar,  J.,  in  Munroe  v.   Holmes,  13  were  allowed  under  statute  provisions 

Allen,     109.     In     Munroe   v.    Holmes,  relating  to  a  suit  on  an  administrator's 

supra,  it  was  held  that  there  was  no  bond, 
action  at  common  law  available  against         *The  power  of  the  probate  court  ex- 

23  353 


§   262  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

If  at  the  time  of  the  original  executor's  or  administrator's 
decease  or  removal  there  should  remain  personal  assets  in  his 
hands,  enough  may  be  retained  to  satisfy  the  balance  found  due 
on  an  accounting  of  his  administration.  Otherwise,  personal 
assets  coming  to  the  hands  of  the  representative  de  bonis  non 
are  justly  applicable  to  setthng  this  balance  ;  and,  if  no  personal 
assets,  real  estate  of  the  deceased  may  equitably  be  reached ; 
the  difficulty  is  only  the  practical  one  as  to  the  best  mode  of 
thus  enforcing  the  charge  against  the  estate  when  the  first  rep- 
resentative's Hen  is  wanting." 

§  261.  Assets  recovered  by  Representative  on  his  own  Contract 
enures  to  the  Estate.  —  Where  an  executor  or  administrator  re- 
covers in  his  own  name  upon  a  contract  made  with  him  person- 
ally after  the  death  of  the  decedent,  respecting  the  estate  or  for 
money  received  by  the  defendant  for  the  use  of  the  estate  after 
such  death,  he  is  answerable  in  his  fiduciary  capacity  for  the 
amount  recovered,  as  for  assets.^ 

§  262.  The  Estate  should  not  derive  Unconscientious  Advan- 
tage, etc.  — While,  as  we  shall  see,  a  decedent's  estate  is  not  to  be 
rendered  responsible  in  damages  for  torts  and  frauds  committed 
by  the  representative,  and  while,  moreover,  in  a  sale  of  assets 
the  rule  is  caveat  emptor,  it  would  appear  that  an  estate  ought 
not  to  derive  any  unjust  or  unconscientious  advantage  from  the 
representative's  misconduct.^  One  should  not  claim  a  right  in 
behalf  of  the  estate  he  represents,  founded  upon  the  fraud  of 
the  decedent  ;■♦  nor  be  heard  to  assert  for  his  justification  that 
his  fraud  or  his  violation  of  law  redounded  to  the  benefit  of  the 
estate.  5 

tends  only  to  the  assets  of  the  estate,  undisposed  of  during  his  lifetime,  see 

and  the  court  cannot  make  an  allowance  Maraman  v.  Trunnell,  3  Met.  (Ky.)  146. 

other  than  that  which  is  properly  charge-  ^  Mowry  i'.   Adams,    14    Mass.  327; 

able   against    the   estate.      Clement    v.  Smith  v.  Wilmington  Coal  Co.,  83  111. 

Hawkins,  16  Miss.  339.  498. 

'  See  Hoar,  J.,  in  Munroe  v.  Holmes,  ^  Able  v.  Chandler,  12  Tex.  88  ;  Cock 

13  Allen,  109.     And  as  to  appropriating  v.  Carson,  38  Tex.  284. 

notes  which  were  executed  to  one  in  his  *  Armstrong  v.  Stovall,  26  Miss.  275. 

capacity  of  executor  and  administrator,  '  Crump  v.  Williams,  56  Ga.  590. 
and  which    remained    uncollected    and 

354 


CHAP.   I.]        representative's    TITLE    AND    AITHOKITV.         §    264 

§  263.  Whether  Admissions  by  Representatives  bind  the  Es- 
tate.—  Executors  or  administrators  by  their  admissions  bind  the 
estate,'  But  such  admissions  or  declarations  by  a  representative 
are  only  competent  evidence  as  to  his  own  acts  after  he  became 
clothed  with  the  trust,  and  do  not  bind  the  estate  in  so  far  as 
they  refer  to  what  the  decedent  told  him  during  his  life/  or 
were  made  after  decedent  died  and  before  he  himself  was  ap- 
pointed and  qualified.^  It  is  not  a  representative's  duty  to  volun- 
teer disclosures  to  the  injury  of  the  estate ;  ■♦  but  he  may  bind 
the  estate  by  consenting  to  a  just  claim. 5 

§  264.  Representative's  Pow^er  over  Assets  vrhether  controlled 
by  Probate  or  Equity  Courts.  —  It  is  held  that  the  executor's  or 
administrator's  power  of  disposing  of  assets  is  not  controlled  or 
suspended  by  the  mere  filing  of  a  bill  of  equity  on  the  part  of 
the  creditor  for  the  administration  of  the  estate  ;  for  it  is  said 
such  power  continues  until  there  has  been  a  decree  in  the  suit.""' 
Bills  for  administration  of  assets  are  not  common  in  American 
practice ;  but  the  representative  proceeds  upon  qualification  to 
perform  his  duties  according  to  the  terms  expressed  in  his  pro- 
bate credentials,  and  subject  to  the  conditions  of  his  probate 
bond,  which  serves  as  security  to  those  interested  in  the  estate, 
being  filed  in  the  probate  registry.  Creditors  who  are  aggrieved 
can  have  ready  recourse  to  the  common-law  tribunals  ;  besides 
which,  various  local  statutes  provide  the  means  of  authenticating 
and  filing  their  claims  at  the  probate  office."  Where  an  execu- 
tor or  administrator  has  taken  possession  of  personal  property 
as  part  of  the  estate  of  his  decedent,  a  probate  court  has  no  in- 
herent jurisdiction  to  compel  him  to  deliver  it  to  the  owner  thereof, 
upon  a  summary  application  of  the  owner ;  ^  nor  in  general  can 

'  Sample   v.    Liscomb,    i8    Ga.    687.  revivor.     Maddox  v.  Apperson,  14  l.ea, 

And  they  may  release  witnesses  from  596. 

liability  to  the  estate.     Neal  ?'.  Lamar,  ^  Sheldon  v.  Warner,  59  Mich.  444. 

18  Ga.  746.  '' Neeves  v.  Burrage,   14  Q.  B.  504; 

^  Godbee  v.  Sapp,  53  Ga.  283.  Wms.  Exrs.  942. 

'  Gibson  v.  Lowndes,  28  S.  C.  285.  "  See  Part  \.,  post,  as  to  the  pajTnent, 

*  As,   e.g.,    disclosures   which    might  etc.,  of  claims, 

render    successful    a   lawsuit    pending  ^  Marston  t'.  Patilding,    10  Paige,  40; 

against  the  testator  at  the  time  of  his  Crawford  v.  Elliott,  i  Bailey,  206. 
death,  and  against  his  representative  by 

355 


§   265  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

such  tribunals  interfere  with  the  regular  course  of  justice  before 
the  common-law  tribunals.  Nor  will  a  court  of  equity  interfere 
usually  with  an  executor  or  administrator  as  respects  the  due 
administration  of  assets  in  his  hands,  unless  there  is  reason  to 
fear  some  probable  injury  to  the  rights  and  interests  of  the  com- 
plainant.' 

But  an  executor,  trustee,  or  other  fiduciary  cannot  have  an 
authority  conferred  upon  him,  not  in  some  measure  subject  to 
the  control  and  supervision  of  the  probate  and  chancery  tribu- 
nals, as  in  compelling  accounts  and  passing  upon  their  allow- 
ance ;  and  should  a  testator  have  directed  otherwise,  that 
direction  must  be  disregarded.^  A  purely  arbitrary  discretion, 
independent  of  the  judicial  rules  which  govern  the  settlement 
of  estates,  is  not  to  be  exercised  by  an  executor,  nor  is  the 
testator  presumed  to  have  intended  conferring  it.^ 

§  265.  Interpleader,  etc.,  for  Instructions,  etc.,  by  the  Personal 
Representative.  —  Executors  and  trustees,  by  bill  in  the  nature 
of  a  bill  of  interpleader,  may  take  the  advice  of  a  court  of 
chancery  upon  questions  connected  with  the  discharge  of  their 
duties.  But  the  interposition  of  the  court  in  such  case  is 
discretionary,  and  will  not  be  exercised  except  in  matters  of 
importance  involving  one's  own  course  of  action.-*  An  admin- 
istrator cannot  resort  to  equity  as  a  matter  of  course,  to  obtain 
its  aid  and  instruction  in  the  settlement  of  his  intestate's  estate, 
but  only  where  there  are  special  circumstances  involved  in  such 
settlement  which  justify   so  unusual   a  prpcecding.s     And,  in 

'  Ashburn  v.  Ashburn,  i6  Ga.  213.  stat.  22  &  23   Vict.  §   30,  expressly  con- 

^Holcomb  V.  Holcomb,  1 1    N.  J.  Eq.  fers  the  right  upon  executors  or  admin 

281.     See  as  to  directing  for  a  contest  istrators  to  apply  by  petition  to  a  court 

concerning  a  gift  causa  mortis.  Wads-  of  chancery  for  opinion,  advice,  and  di- 

worth  V.  Chick,  55  Tex.  241.  rection  respecting  the  management  or 

'  Hull  7'.  Hull,  24  N.  Y.  647.  administration  of  the  property.     Wms. 

■•Crosby   v.   Mason,   32   Conn.    482;  Exrs.  1909. 

Parker  v.  Parker,  119  Ma.ss.  478;  An-  '  Pitkin  v.  Pitkin,  7   Conn.  315;  Mc- 

nin   V.   Vandoren,    14    N.  J.   Eq.   135;  Neill  z/.  McNeill,  36  Ala.  109;  Beers  v. 

Goodhue  z/.  Clark,  37  N.  H.  525  ;  Hous-  Strohecker,    21     Ga.    442.      Executors 

ton  V.  Howe,  84  N.  C.  349 ;  Woodniff  and    others    should  not  seek  the  con- 

V.   Cook,  47   Barb.  304;  Shewmake  ?■.  .'^truction  of  a  will  or  instructions  as  to 

John.son,  57   Ga.   75.      In  England  the  future    remote     contingencies    discon- 


CHAP.   I.]       representative's    TITLE    AND    AUTHORITY.         §    267 

general,  no  executor  or  administrator  should  ask  for  instruc- 
tions upon  a  point  as  to  which,  considering  the  actual  condition 
of  the  estate,  he  is  not,  and  probably  never  will  be,  embarrassed 
in  the  performance  of  his  duties." 

§  266.  Representative  not  a  Proper  Party  to  Suits  for  annul- 
ling a  Marriage. —  The  executor  or  administrator  is  not  the 
proper  representative  of  the  deceased  person  to  annul  his  mar- 
riage. Statutes  which  sanction  such  proceedings  leave  it  rather 
to  children  or  relatives  to  take  that  momentous  responsibility.^ 

§  267.  Vesting  of  Possession;  Chattels  Real,  etc.,  as  distin- 
guished from  Chattels  Personal.  —  A  distinction  is  drawn  in  the 
books  between  chattels  personal  and  chattels  real,  as  to  the 
vesting  of  possession  in  the  representative.  The  property  of 
personal  chattels  draws  it  to  the  possession,  and  hence,  as  to 
all  such  property  of  the  deceased,  wherever  situated,  the  repre- 
sentative acquires  possessory  title  at  once.^  But  as  to  chattels 
real,  leases,  and  other  chattel  interests  in  things  immovable, 
including  tenancies  at  will  or  from  year  to  year,  of  these  the 
representative,  though  potentially  owner,  is  not  deemed  to  be 
in  possession  before  entry.-*  The  reversion  of  a  term,  however, 
which  the  testator  granted  for  part  of  the  term,  is  held  to  be  in 
the  executor,  immediately  upon  the  death  of  the  testator  ;  5  and 
it  would  seem  that  the  rule  of  law  which  makes  the  title  of  ad- 
ministrator as  to  personal  chattels  relate  back  to  the  death  of 
the  intestate,  so  as  to  enable  him  to  recover  for  mesne  injuries 
or  their  conversion,  applies  likewise  to  chattels  real,  only  that 
he  must  first  enter.^     This  requirement  of  entry  appears  to  be 

nected  with  a  continuing  duty  on  their  erly  ask  for  instructions  as  to  his  course. 

part.     Minot  v.  Taylor,  129  Mass.  160;  Sellers  v.  Sellers,  35  Ala.  235. 

Powell  w.  Deming,  22  Hun,  235.  ^  Pengree    v.   Goodrich,   41    Vt.   47; 

'Rexford  v.   Wells,   13   W.  Va.  812.  Schoul.  Hus.  &  Wife,  §  13. 
And  see  further,  Putnam  J/.  Collamore,         ^Wentw.    Off.    Ex.    228,    14th    ed. ; 

109    Mass.   509.       There    are    circum-  Wms.  Exrs.  635  ;  Doe  v.   Porter,  3  T. 

stances  of  embarrassment  under  which  R.  13;  Taylor  Landl.  &  Ten.  §  434. 
an  administrator  de  bonis  iion  or  an  ad-         ■•  lb.     And  see  supra,  §  223. 
ministrator  with  will  annexed  may  prop-         '  Trattle  v.  King,  T.  Jones,  170. 

"  Rarnett  v.  Guilford,  1 1  Ex.  20,  32. 

357 


§    26S/;  EXECUTORS    A\D    ADMINISTRATORS.  [PART  IV. 

raised,  therefore,  for  his  benefit,  so  as  not  to  force  him  to  as- 
sume the  liabiHties  of  tenant. 

§  268.    Whether  the  Representative  may  act  by  Attorney.  —  In 

many  transactions  the  legal  representative  manages  the  estate 
with  the  aid  of  some  attorney  of  his  choice,  and  it  may  often 
be  adxantageous  to  him  to  employ  professional  counsel.  But 
the  rule  is,  that  one  delegated  to  a  trust  cannot  delegate  that 
trust  to  another;  so  that  ultimately  the  official  discretion  and 
responsibility  become  his  own.'  A  power  of  disposition  given 
under  a  will  to  executors,  which  is  a  personal  trust,  cannot, 
therefore,  as  a  rule,  be  executed  in  the  name  of  an  attorney.'' 
Nor  can  the  representative,  by  a  power  of  attorney  which  no 
will  has  authorized,  transfer  the  entire  management  of  the  estate 
which  he  represents  so  as  to  bind  creditors  and  interested 
parties.^ 

§  268^.  No  Property  in  the  Body  of  the  Intestate.  —  An  ex- 
ecutor or  administrator  has,  as  a  rule,  no  official  interest  in  or 
control  over  the  body  of  his  decedent,  and  apart  from  some 
enabling  statute  he  cannot  maintain  an  action  for  injury  or 
mutilation  to  the  corpse,  though  he  might  sue  for  corresponding 
injury  to  the  garments  which  the  decedent  wore  when  he  per- 
ished.'* 

§  268/;.  Transactions  barred  by  Lapse  of  Time. —  Lapse  of 
time,  such  as  bars  out  remedies,  may  limit  the  representative's 
obligation  to  answer  for  or  inquire  into  the  transactions  of  his 
decedent. 5 

'.9///>;<?,  §    109;    DiiviT  7',  Riddle,   8  solve  himself.     Newton  i*.  Bionson,  ij 

Port.  (Ala.)    113;   I'.ird  t.  Jones,  5   La.  N.  Y.  587;  Terrell  z'.  McCown,  91  Tex. 

Ann.  645.  231. 

'9  Co.  75   b;   Wms.   E.xrs.   943,   951,  ^Neal    v.    Patten,    47    Ga.  73.      See 

and  Perkins's   note;  Williams  v.  Mat-  §  3-i. 

tocks,    3    Vt.    189;     Berger  v.   Duff,  4  <  Griffith  r-.  Charlotte  R.,  23  S.  C.  25. 

Johns.  Ch.  368.     Thns  an  executor  may  Cf.  §§  211,  283.     We  here  consider  the 

employ  a  person   to   formally  execute  "right  of  property"  and  not   rights  as 

deeds  or  contracts  on  terms  satisfactory  concern  a  burial. 

to  himself,  but  he  cannot  gii-e  the  actual  "  .\lliott  v.   Smith   (1895)   2  Ch.  iii 

discretion  to  such  a  person  so  as  to  ab-  (twenty  years  before  the  person  died). 

35« 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §   269 


CHAPTER  II. 


COLLECTION  OF  THE  ASSETS. 


§  269.  General  Duty  of  Executor  or  Administrator  to  collect  the 
Effects,  etc.  —  It  is  incumbent  upon  every  executor  or  adminis- 
trator, upon  the  completion  of  his  appointment,  to  take  prudent 
measures  for  bringing  all  the  personal  property  of  the  deceased 
for  which  he  may  be  legally  answerable  into  his  actual  control 
and  possession.  And  there  is  no  function  of  his  office  which 
calls  for  such  energy,  promptness,  and  discretion  in  its  discharge 
as  this.  Collection  precedes  in  natural  order  the  settlement  of 
debts  and  charges,  and  is  the  primary  essential  of  prudent  ad- 
ministration. Whoever  may  have  been  the  custodian  of  all  or 
particular  goods  and  chattels  of  the  deceased,  the  duly  qualified 
legal  representative  should  cause  him  to  attorn  or  surrender  pos- 
session, in  order  that  the  estate  may  derive  the  full  benefit  of 
the  assets  to  which  it  is  entitled.  Corporeal  things,  and  the  cor- 
poreal muniments  of  title,  the  personal  representative  should 
seek  to  procure.  And  as  to  debts  and  incorporeal  rights,  evinced 
or  not  evinced  by  instruments  in  writing,  the  duty  of  collection 
on  behalf  of  the  estate  applies  in  a  correspondent  sense  ;  though 
here  the  duty  of  reducing  to  possession  naturally  imports  the 
collecting  on  demand,  by  suit  or  otherwise,  whatever  may  be  due, 
and  realizing  the  value  of  the  thing  after  the  method  appropriate 
to  its  nature.  No  creditor,  and  not  even  the  devisee,  heir,  or 
surviving  spouse,  is  entitled  to  the  possession  of  personal  prop- 
erty left  by  the  decedent,  which  constitutes  lawful  assets,  as 
against  the  claim  of  the  duly  qualified  executor  or  adminis- 
trator.' 

It  is  the  duty  and  right,  therefore,  of  the  executor  or  admin- 
istrator, as  soon  as  he  shall  have  lawfully  taken  upon  himself  the 

'  See  Page  v.  Tucker,  54  Cal.  121. 

359 


§   270  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 

execution  of  his  office,  to  collect  and  possess  himself  of  all  the 
assets,  so  that  he  may  be  enabled  to  meet  the  payment  of  the 
debts  against  the  estate  as  they  shall  be  presented.  Not  being 
permitted  to  delay  collecting  the  assets  until  he  can  first  ascer- 
tain the  amount  of  the  debts,  the  whole  of  the  assets,  for  aught 
he  can  know,  may  be  wanted  for  paying  them ;  and  hence  it 
becomes  his  duty  to  collect  them  with  all  reasonable  diligence ; 
and  the  law  supplies  him  with  the  means  adequate  for  that  end.' 
The  personal  property  vests  in  the  representative  for  paying 
debts  immediately,  and  more  remotely  legacies  or  distributive 
shares ;  and,  in  a  word,  for  administration  according  to  the  re- 
quirements of  law,  and,  it  may  be,  the  provisions  of  the  dece- 
dent's last  will.  His  duty  to  collect  with  reasonable  care  and 
diligence  is  quite  independent  of  any  demand  or  request  from 
creditors  or  distributees  of  the  estate.^ 

§  270.  Statute  Methods  for  discovering  Assets  in  aid  of  the 
Representative's  Pursuit.  —  Some  of  our  American  legislatures 
have  provided  a  convenient  and  inexpensive  means  of  aiding  the 
representative  in  his  pursuit  of  assets,  in  the  nature  of  a  sum- 
mary process  in  the  probate  court  for  citing  in  any  suspected 
party  and  examining  him  upon  oath  before  the  tribunal  which 
issued  the  letters.  Thus,  a  Massachusetts  statute  provides  that 
upon  complaint  against  any  person  suspected  of  having  fraudu- 
lently received,  concealed,  embezzled,  or  conveyed  away  any 
money,  goods,  effects  or  other  estate,  real  or  personal,  of  the 
deceased,  the  court  may  cite  such  suspected  person  to  appear 
and  be  examined  upon  oath  touching  the  matter  of  the  complaint. 
If  the  person  so  cited  refuses  to  appear  and  submit  to  examina- 
tion, or  to  answer  the  questions  lawfully  propounded  to  him,  the 
court  may  commit  him  to  jail,  there  to  remain  in  close  custody 
until  he  submits.  The  interrogatories  and  answers  shall  be  in 
writing,  signed  by  the  party  examined,  and  filed  in  court. ^ 

'  See  Eisenbise7A  Eisenbise,  4  Watts,  Sabin,  4  Cush.  46;  Milnerz/.  Leishman, 
134,136.     And  see  §  238.  12    Met.     320.       Similar    statutes    are 

^  Harrington  c'.  Keteltas,  92  N.  Y.  40;  found  in  other  New  England  State.s. 
Grant  v.  Reese,  94  N.  C.  720.  With  reference  to  issuing  a  search  war- 

»  Mass.  Pub.  Stats,  c.  133  ;  Arnold  v.     rant  under  New  York  statute,  see  I'ublic 

360 


CHAP.    II.]  COLLECTIOX    0|-     lllK    ASSETS.  §    2/1 

The  remedies  thus  afforded  may  enable  the  executor  or  ad- 
ministrator to  push  inquiries,  advantageous  as  a  preHminary  to 
instituting  proceedings,  civil  or  criminal,  before  the  usual  tribu- 
nals, besides  vindicating  his  own  zeal  in  seeking  out  the  property. 
And  so  favored  is  this  summary  inquisition,  in  connection  with 
the  settlement  of  estates,  that  parties  interested  may  themselves 
invoke  it  against  the  executor  or  administrator,  where  his  own 
conduct  lays  him  open  to  a  corresponding  suspicion."  It  is  to 
be  observed,  however,  that  the  statute  authority  usually  extends 
only  to  the  propounding  of  lawful  interrogatories,  and  compell- 
ing the  person  cited  to  answer  them  ;  the  suspected  person  is 
not  to  be  deprived  of  the  assistance  of  counsel  in  making  his 
answers  ;  ^  nor  can  the  process  itself  avail  beyond  procuring  a 
disclosure  of  facts  to  serve  as  the  basis  of  proceedings  elsewhere, 
unless,  as  might  well  be  anticipated,  the  person,  if  liable  and  in 
actual  possession,  chooses  to  surrender  without  further  resist- 
ance.3  The  New  York  statute,  however,  besides  aiming  at  this 
compulsory  production  of  evidence,  undertakes  that  the  proce- 
dure shall,  where  the  evidence  justifies  it,  result  further  in  a 
decree  requiring  the  cited  person  to  deliver  possession  summarily 
to  the  complainant,  or  else  to  furnish  security  to  abide  by  the 
decision  of  the  proper  tribunal,  and  pay  all  damages  in  case  the 
suit  be  determined  against  him.'* 

§  271.  Special  Statute  Proceedings  against  Intermeddlers  with 
the  Assets,  etc.  —  In  some  States,  under  the  statute,  an  execu- 
tor or  administrator  may  file  a  bill  in  chancery  against  one  who 
intermeddles  with  or  embezzles  goods  of  the  estate,  instead  of 


Administrator  -'.  Ward,  3   Bradf.   244.  as  interposing  a  bar  to  such  examina- 

The  surrogate  may  cite  on  reasonable  tion.     O'Dee  v.  McCrate,  7  Greenl.  467. 

grounds.     2  Dem.   296,  396.     See  also  "■  Redf.  (N.  Y.)  Surr.  Pract.  c.  17,  §3. 

Missouri    statute.      Eans  v.    Eans,   79  The  procedure  under  this   New  York 

Mo.  53.     As  to  how  far  such  proceed-  statute  assumes  that  the  petitioner  for 

ings   may  be   constitutionally  pressed,  a  citation  shows  reasonable  grounds  for 

see  105  Cal.  600!  the  inqmry.     The  statute  has  been  pro- 

'  See  language  of  statute,  supra.  nounced  unconstitutional  in  the  supreme 

-  Martin  v.  Clapp,  99  Mass.  470.  court   (not  the  highest    tribunal   in  the 

^  LapsK  of  time  is  not  readily  regarded  vState).      Reebe,  Matter  of,  20  Hun.  462. 


§   2/2  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 

proceeding  at  law.'  And  the  common-law  remedy  against  a 
defendant  as  executor  de  son  tort,  which  often  rendered  one  lia- 
ble for  large  debts  where  only  a  trivial  amount  of  property  had 
come  into  his  possession,  is  also  found  superseded  in  some  States 
by  legislative  acts,  which  provide  that  an  action  may  be  brought 
for  the  benefit  of  the  estate  to  recover  double  the  amount  or 
value  of  the  property  which  may  have  been  alienated  or  embez- 
zled by  any  unauthorized  person  before  the  grant  of  letters  tes- 
tamentary or  of  administration  ■  only,  however,  on  proof  of  wrong 
motive  in  the  defendant.^ 

§  272.  Power  of  Executor  or  Administrator  to  enter  Premises, 
force  Locks,  etc.,  in  Pursuit  of  Assets.  —  The  old  writers  define 
with  excessive  caution  the  limitations  under  which  the  personal 
representative  may  enter  premises,  force  locks,  and  the  like,  in 
the  pursuit  of  assets  for  which  he  is  answerable.  Within  a  con- 
venient time  after  the  testator's  death,  or  the  grant  of  adminis- 
tration, as  they  admit,  the  executor  oi'  administrator  has  a  right 
to  enter  the  house  descended  to  the  heir,  in  order  to  remove  the 
goods  of  the  deceased ;  provided,  as  they  add,  he  do  so  without 
violence  —  as  if  the  door  be  open,  or  at  least  the  key  be  in  the 
door.  He  has  also  a  right,  they  observe,  to  take  deeds  and 
other  writings,  relative  to  the  personal  estate,  out  of  a  chest  in 
the  house  if  it  be  unlocked  or  the  key  be  in  it.^  But,  they  add, 
although  the  door  of  entrance  into  the  hall  and  parlor  be  open, 
he  cannot  justify  forcing  the  door  of  any  chamber  to  take  the 
goods  contained  in  it  ;  but  is  empowered  to  take  those  only 
which  are  in  such  rooms  as  arc  unlocked,  or  in  the  door  of  which 
he  shall  find  the  key.^  Nor,  they  say,  has  he  a  right  to  break 
open  even  a  chest. 5 

These  are  ancient  authorities,  relating  chiefly,  if  not  altogether, 
to  controversies  with  the  heir  who  occupies  the  dwelling-house 

'Thorn   v.    Tyler,    3    Blackf.    (Ind.)  ^  Went.  Off.  Ex.  81,  202,   14th  ed.; 

504;  Hensley  v.  Dennis,  i  Ind.  471.  Toller,  255. 

*  Roys   V.   Roys,    13    Vt.   543.     The  ■'lb. 

common-law  right  of  suing  in  trespass  Mb.     These  authorities  may  be  found 

or  trover  is  not  other\\-ise  restrained  by  cited,  Wms.  Exrs.  926. 
this  statute.     lb. 

362 


CHAP.    II.]  COLLECTION    OF    THE    ASSETS.  §    2/2 

of  the  decedent  ;  and  modern  adjudication  upon  these  and  col- 
lateral points  appears  to  be  wanting.  Yet  the  case  of  one's  pro- 
ceeding upon  premises  occupied  by  the  deceased,  to  take  an 
inventory,  to  procure  possession  of  the  goods  and  effects,  or 
even,  as  preliminary  to  all  probate  authority,  to  search  for  a  will, 
is  of  constantly  familiar  occurrence.  Such  acts  are  often  highly 
prudent,  and  indeed  essential  to  be  performed.  The  good  judg- 
ment and  delicate  discretion  of  all  the  parties  concerned,  each 
being  desirous  to  manifest  his  honest  intent,  furnish  the  best 
and  probably  the  usually  accepted  assurance  that  all  is  lawfully 
and  properly  done  ;  and  to  expect  that  a  missing  key,  a  forgotten 
combination,'  an  unruly  lock,  shall  needs  baffle  a  search  which 
can  only  be  advantageous  when  thorough,  and  that  all  concerned 
must  be  driven  on  shght  obstruction  into  the  courts,  instead  of 
the  nearest  locksmith's,  seems  absurd.  It  may  well  be  presumed 
in  these  days  that  a  deceased  person  of  fortune  has  left  some  of 
his  property,  if  not  a  will  disposing  of  it  all,  in  some  place  where 
those  who  survive  him  cannot  lay  hands  as  readily  upon  it  as 
he  might  have  done  when  alive  ;  and  while  his  own  lock  imported 
exclusion  to  all  the  world  while  he  was  owner,  it  does  not,  we 
apprehend,  on  his  death  import  exclusion  as  against  those  on 
whom  the  title  may  have  devolved  in  consequence,  nor  so  as  to 
prevent  due  ascertainment  of  the  facts  relating  to  that  devolu- 
tion of  title.  Indeed,  for  this  exigency  the  controlling  principle 
appears  to  be,  as  in  bailments  and  trusts  generally,  that  reason- 
able diligence  and  prudence  should  be  pursued  by  all  concerned 
for  the  welfare  of  the  estate,  according  to  the  circumstances, 
and  genuine  good  faith  under  all  circumstances. 

It  is  submitted,  therefore,  that  as  to  the  right  of  entering 
premises,  forcing  locks,  and  the  like,  the  case  of  executor  or 
administrator  after  qualification  differs  not  fundamentally  from 
that  of  bailee,  custodian,  unqualified  representative,  or  suitable 
family  representative  ;  but  that  (i)  the  purpose  should  be  a 
suitable  one,  —  as  to  make  an  inventory  or  preliminary  schedule, 
or  to  search  for  a  will,  or  to  take  a  lawful  custody  whether  tem- 

'  For  combination  locks  are  a  modern  contrivance  suggesting  novel  method-  as 
to  a  prudent  search  of  the  receptacle. 


§    2/2  KXKCUTOKS    AND    AD.MIXISTRATORS.  [PAKT   IV. 

porary  or  permanent  ;  and  that  (2)  this  purpose  should  be  exe- 
cuted with  honesty  and  reasonable  prudence.  The  application 
of  the  rule  differs,  however,  as  the  proceeding  on  behalf  of  the 
estate  proves  to  be  resisted  or  not  by  others  in  interest  and  in 
possession  of  the  premises  or  locked  receptacle.  Where  there 
is  no  such  resistance,  it  would  appear  that,  subject  to  this  rule 
of  prudence  and  good  faith,  locks  afford  no  decisive  obstacle  to 
the  prosecution  of  one's  duty  in  the  premises,  nor  necessarily 
require  a  court  to  interpose  its  formal  sanction  ;  for  while  a 
custodian  may  usually  leave  locked  premises  and  locked  chests 
as  they  are,  for  a  time  and  pending  judicial  delays,  it  would  under 
some  circumstances  be  highly  perilous  to  do  so.  Where,  how- 
ever, others  in  interest  and  actual  possession,  and  not  mere  in- 
truders, resist  a  representative's  proceedings,  and  the  lock  is 
not,  so  to  speak,  a  casual  obstruction  left  by  the  deceased,  but 
their  own  as  against  him,  doubtless  the  representative,  qualified 
or  unqualified,  the  bailee,  or  family  representative,  should  pro- 
ceed with  far  greater  reserve  ;  though  to  desist  and  resort  to 
the  courts  does  not  even  thus  necessarily  follow.  Something 
depends,  moreover,  upon  one's  situation  with  reference  to  his 
decedent's  chattels  ;  as  being  already  invested  with  a  bailment 
custody,  for  instance,  or  as  pursuing  the  search  uix)n  neutral  or 
perhaps  hostile  premises.  Thus,  it  is  decided  that  no  one  in 
possession  of  a  locked  box  belonging  to  the  estate  has  any  right 
to  compel  the  qualified  representative  to  give  him  a  schedule  of 
its  contents  or  to  impose  other  unreasonable  preliminaries  to  its 
surrender  ;  and  it  seems  that  locked  or  unlocked  the  box  should 
be  passed  over.' 

The  passages  from  our  earlier  writers  have  a  strict  reference, 
therefore,  only  to  the  executor  or  administrator  who  comes  in 
collision  with  that  especial  favorite  of  the  old  common  law,  the 
inheritor  of  the  laiul.  The  representative,  in  other  words,  can- 
not force  his  way  rudely  against  the  heir's  wishes  to  take  goods 
and  chattels  from  the  lands  which  have  descended  to  the  latter, 
breaking  locks  as  he  goes  ;  thougli  unc|uestionabh'  the  repre- 
sentative must  take  them  or  recover  them  by  process  or  without 

'See  Cobbett  v.  C'lutlon,  2  C.  &  P.  471. 
364 


CHAF.   II.]  COLLECTION    OF    THE    ASSETS.  §   2/4 

it.'     In  any  event,  the  executor  or  administrator  must  not  un- 
reasonably defer  the  duty  of  seeking  possession. 

§  273.  Duty  to  pursue  or  collect  depends  upon  Means  at  Rep- 
resentative's Disposal. —  The  duty  of  an  executor  or  administra- 
tor to  pursue  and  recover  chattels  depends  in  a  great  measure 
upon  the  means  at  his  command  for  doing  so ;  and  the  same 
may  be  said  with  reference  to  collecting  dues  to  the  estate. 
Whether  slender  assets  shall  be  used  in  litigation  for  procuring 
personal  property  adversely  held,  or  in  realizing  doubtful  claims, 
the  rule  of  prudence  must  decide  ;  but  it  is  certain  that  the  rep- 
resentative of  an  estate  is  not  bound  to  litigate  or  to  undertake 
the  enforcement  of  doubtful  rights  on  behalf  of  the  estate  out 
of  his  own  means  ;  and  if  kindred,  legatees,  or  others  interested 
in  prosecuting  the  right,  think  the  effort  worth  making,  they 
should  at  least  offer  to  indemnify  the  representative  against  the 
cost.' 

§  274.  Duty  to  pursue  or  collect  depends  also  upon  Sperate  or 
Desperate  Character  of  the  Claims.  —  The  duty  to  pursue  or  col- 
lect depends  largely,  too,  upon  the  sperate  or  desperate  charac- 
ter of  the  claim  itself ;  as  to  whether,  for  instance,  the  title  of 
the  deceased  to  such  a  corporeal  thing  or  muniment  can  be 
clearly  established  against  the  adverse  possessor  or  the  reverse  ; 
or  again,  whether  such  a  debt  or  claim  is  probably  collectible 
or  not,  considering  the  debtor's  own  solvency.  A  representa- 
tive is  not  chargeable  for  assets,  without  reference  to  the  fact 
whether  they  were  good,  doubtful  or  desperate  at  the  time  when 
he  assumed  the  trust,  nor  in  any  case,  aside  from  the  question 

"  See  76  Mich.  383  and  cases  cited.  To  forcibly  enter  upon  premises  in  pos- 

If  the  representative  be  remiss  in  re-  session  of  the  heir  and  forcibly  take 

moving  the  goods  within  a  reasonable  possession  of   assets,   without   process 

time,  the  heir,  it  is  held,  may  distrain  and  against  the  heir's  wishes,  is  perilous ; 

them  as  damage  feasant.     Plowd.  280,  and  all  the  more  so  if  the  representative 

281 ;  Cro.  Jac.  204;     Went.    Off.     Ex.  had  no  right  to  such  property.     Rough 

202;  Wms.  Exrs.  927.  v.  Womer,  76  Mich.  375. 

A  statute  may  define  or  extend  the         ^Griswold  v.  Chandler,  5  N.  H.  492  ; 

power  of  the  representative  in  such  re-  Andrews  v.  Tucker,  7  Pick.  250;  San- 

spects ;  but  such  legislation  is  to  be  in-  born  v.  Goodhue,  8  Fost.  48  ;  Hepburn 

terpreted  according   to  circumstances,  v.  Hepburn,  2  Bradf.  (N.  Y.)  74.. 


§   276  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

of  delinquency  or  culpable  neglect  on  his  part  in  realizing  their 
value  or  procuring  them  according  to  the  means  at  his  disposal.' 
No  executor  or  administrator  is  bound  to  sue  a  worthless  debt, 
but  ordinary  care  and  diligence  is  the  true  criterion  of  his  duty.^ 
In  many  instances  a  layman  may  be  justified  by  taking  profes- 
sional  advice  as  to  whether  to  expend  in  litigation,  or  how  far.^ 

§275-  Duty  to  pursue  or  collect  depends  also  upon  Represen- 
tative's means  of  Knowledge.  —  The  duty  tO  pursue  or  collect 
depends  also  upon  the  means  of  knowledge  possessed  by  the 
representative.  Thus,  an  executor  or  administrator  cannot  be 
charged  with  a  right  of  action  in  his  decedent,  when  knowledge 
of  the  right  was  never  brought  home  to  himself,  nor  does  he 
become  chargeable,  except  with  reference  to  the  claim  and  the 
condition  of  the  estate,  when  such  knowledge  reached  him.* 

§  276.  Legatees,  Creditors,  etc.,  have  no  Right  to  hold  against 
Representative.  —  Such  is  the  personal  representative's  authority 
over  the  assets  that  until  he  has  by  his  acts  and  conduct  made 
a  virtual  transfer  of  title  to  a  legatee  or  other  party  in  interest, 
such  interest  cannot  be  set  up  against  him.  Where,  therefore, 
the  residuary  legatee  or  next  of  kin  is  suffered  to  remain  in  pos- 
session of  personal  property  of  the  deceased,  pending  a  final 
settlement  of  the  estate,  he  is  presumably  a  mere  bailee  of  the 
property  for  the  personal  representative,  and  is  liable  to  be 
called  upon  to  surrender  it,  as  the  course  of  administration  may 
require. 5  And  a  payment  made  by  a  debtor  of  the  estate  to 
any  one,  even  to  the  residuary  legatee  or  next  of  kin,  is  a  mis- 
payment,  and  from  such  person  the  representative  may  recover 
it.°  A  creditor's  claim  against  the  estate  is  preferred  to  that 
of  kindred  or  legatees  ;  and  yet  not  even  a  creditor  has  the 

'  Cook  7>.  Cook,  29  Md.  538  ;   Pool,  derson  v.  Piercy,  20  \V.  Va.  282.     But 

Succession  of,  14  La.  Ann.  677.  he  ought  to  give  somegood  excuse.     88 

^See  Smith  v.  Collamer,  2  Dem.  147.  N.  C.  416.     See  §308. 

A  claim  which  is  already  outlawed  need  ^  See  §  544. 

not  be  prosecuted.     Patterson  z/.  Wads-  ^Sarah   v.    Gardner,    24    Ala.    719; 

worth,   89    N.    C.    407.     That    a    debt  Lukton  7y.  Jenney,  13  Pet.  381. 

might  have  been  collected  is  not  con-  '  Carlisle  z/.  Burley,  3  Greenl.  250. 

elusive  against  the  representative.     An-  *  lusenbise  v.  Eisenbise,  4  Watts,  134. 

366 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §   277 

right  to  take  possession  of  assets  for  the  purpose  of  either  se- 
curing or  paying  himself  the  debt  clue  to  him  ;  nor  can  he,  after 
having  obtained  possession,  withhold  it  from  the  representative 
unless  the  possession  was  obtained  for  that  purpose  by  an  agree- 
ment with  the  deceased  during  his  lifetime ;  for,  otherwise,  the 
just  order  for  payment  of  debts  would  be  defeated.' 

§  277-  Suing  to  recover  Assets;  Actions  founded  in  Contract, 
Duty,  etc.,  survive.  —  To  come  now  to  the  representative's  suit 
for  recovering  assets.  From  very  early  times  the  rule  has 
been,  that  personal  actions  which  are  founded  upon  any  con- 
tract, debt,  covenant,  or  the  obligation  to  perform  a  legal  duty, 
survive  the  person  entitled  in  his  lifetime  to  sue,  so  that  the 
right  of  action  passes,  upon  the  creditor's  death,  to  his  executor 
or  administrator.''  Hence,  at  our  common  law,  the  personal 
representative  has  the  right  of  action  to  recover  all  debts  due 
to  the  deceased,  whether  debts  of  record,  as  judgments  or 
recognizances,  or  debts  due  on  bonds  and  other  contracts  under 
seal,  or  debts  due  on  simple  contracts  and  simple  promises,  oral 
or  written,  which  are  not  under  seal.^  Some  exceptions  to  this 
rule  which  appear  to  have  once  prevailed  were  removed  by  the 
operation  of  statutes  passed  before  or  during  the  reign  of  Ed- 
ward III.,  and  long  anterior  to  the  establishment  of  the  English 
colonies  in  America.'' 

It  is  said  that  the  executor  or  administrator  so  completely 
represents  the  deceased  in  all  such  rights  of  action  that  he  may 
enforce  the  obligation,  notwithstanding  the  contract  be  written 
out  and  makes  no  reference  to  him.  Thus,  if  money  be  ex- 
pressly payable  to  B.,  the  right  to  recover  payment  survives  by 
implication  to  B.'s  representative ;  and  though  the  writing 
should  not  only  omit  all  reference  to  executors  and  adminis- 
trators, but  promise  payment  specifically  to  "  B,  or  his  assigns," 
B.'s  executor  or  administrator  may  sue  upon  it  ;  for  a  creditor  is 

'lb.  14th  ed. ;  Carr  v.  Roberts,  5  B.  &  Ad. 

'i  Saund.  216  a;  stat.  31   Edw.  IIL,  78;  Owenz/.  State,  25  Ind.  107;  Bailey 

c.  II  ;  Wms.  Exrs.  786;  Lee  v.  Chase,  v.  Ormsby,  3  Mo.  580. 

58  Me.  432.  ■*  See  as  to  action  of  account,  stats. 

^  Allen   V.    Anderson,  5    Hare,    163;  i  Edw.  I.,  stat.  i,  c.  3  ;  25  Edw.  IIL,  c. 

Wms.  Exrs.  786;  Wentw.  Off.  Ex.  159,  5  ;  31  Edw.  IIL,  c.  1 1  ;  Wms.  Exrs.  786. 


§   279  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

not  presumed  to  have  assented  that  a  debt  owing  him  shall  be 
lost  to  his  estate  if  he  dies  before  receiving  payment." 

S  278.  Survival  of  Actions  founded  in  Contract ;  Exceptions  to 
Rule.  —  To  the  rule  that  every  personal  action  founded  upon  a 
contract  obligation  shall  survive  to  the  personal  representative, 
exceptions  exist,  deducible  from  the  reason  of  the  contract  re- 
lation itself.  Thus,  where  purely  personal  considerations  are 
the  foundation  of  the  contract,  as  in  the  usual  case  of  principal 
and  agent,  or  master  and  servant,  the  death  of  either  party  puts 
an  end  to  the  relation  and  its  incident  obligations.^ 

And  wherever  the  contract  right  is  by  plain  intendment 
coterminous  with  the  decedent's  life,  or  dependent  upon  some 
condition  which  necessarily  fails  by  reason  of  his  death,  the  rep- 
resentative can  take  no  succeeding  advantage  under  the  con- 
tract, but  at  the  utmost  only  such  advantage  as  may  have 
accrued  to  the  decedent  during  his  lifetime,  and  was  not  actu- 
ally enjoyed  by  him.'  Life  insurance  contracts,  too,  may  from 
their  very  nature  be  so  framed  that  the  money  shall,  upon  the 
death  of  the  person  insured,  enure  directly  to  the  benefit  of 
particular  survivors,  and  not  his  general  estate  ;  while,  notwith- 
standing, the  representative  might  be  pro  forma  a  nominal 
party  to  the  suit  on  the  beneficiary's  behalf  to  recover  the 
money 


/.•» 


§  279.  Actions  founded  in  an  Injury  to  Person  or  Property 
died  with  the  Person  at  Common  Law  ;  Later  Variations  of  this 
Rule.  —  But  as  to  actions  founded,  not  in  contract,  but  in  some 
injury  done  either  to  the  person  or  the  property  of  another,  and 

A  bond  or  covenant   to  indemnify  sur-  distinguished    from  one   to   sell   realty 

vives  to   the    representative.      Carr  ?'.  which  descends.     15  Lea,  194. 

Roberts,  5  B.  &  Ad.  78.  ^V^^illes,  J.,  in  Farrow  v.  Wilson,  L. 

'  Hob.  9  ;  Wentw.  Off.  Ex.  215,   14th  R.  4  C.  P.  745  ;  c.  post. 

ed. ;  Wms.  Exrs.   789;    Free.  Ch.   173.  ^Hob.  9,    10;  Free.  Ch.  173;  Wms. 

And    see   as    to    expressions  "heirs,"  Exrs.  789. 

"next  of  kin,"  etc.,  11    Vin.  Abr.   133,  '^ Supra,  %  zw  ;  Lee  e/.  Chase,  58  Me. 

pi.  27  ;  Wms.  Exrs.  787  ;  Carr  v.  Rob-  432.     An  action  to  recover  an  annuity 

ert.s,  5  B.  &  Ad.  78;  §   z"]"],  supra.      A  .survives.      Smith    v.    Smith,    15    Lea, 

suit  to  collect  personal  assets  is  to  be  93.     Also  a  right  of  action  for  being  re- 

368 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §   279 

for  which  only  damages  are  legally  recoverable,  by  way  of 
recompense,  the  earlier  doctrine  of  the  common  law  has  been 
that  the  action  dies  with  the  person  for  the  want  of  litigants  ; 
dies,  that  is  to  say,  with  the  person  who  committed  or  the 
jierson  who  suffered  the  wrong.'  Hence,  the  executor  or  ad- 
ministrator of  the  injured  party  could  not  bring  an  action  in 
former  times  for  false  imprisonment,  assault  or  battery,  or  other 
physical  injury  suffered  by  his  decedent.^  Nor  could  he  sue 
for  torts  affecting  the  feelings  or  reputation  of  his  decedent, 
such  as  seduction,  libel,  slander,  deceit,  or  malicious  prosecu- 
tion.^ So,  too,  all  right  to  recover  for  injuries  done  to  the  free- 
hold —  nay,  perhaps,  to  the  personal  estate  also  —  was  excluded 
by  the  death  of  the  owner. '^ 

Statutes,  however,  in  the  reign  of  Edward  III.,  changed  con- 
siderably a  rule  often  quite  disadvantageous  to  estates  of  the 
dead,  in  its  practical  operation,  by  opening  a  wider  door  to  exec- 
utors and  administrators  who  sought  to  recover  damages  for 
wrongs  suffered  during  life  by  those  whose  estates  they  rep- 
resented. Trespasses  committed  in  carrying  away  personal  prop- 
erty of  the  decedent  during  his  lifetime,  whereby  the  assets 
which  reached  the  executor's  hands  became  necessarily  impaired 
in  value,  first  attracted  the  attention  of  the  English  Parliament ; 

moved  from  office  without   a  hearing.  ••  Wms.  Exrs.  793  ;  i  Saund.  216,  217, 

4  McArth.  141.  notes. 

'  Wms.  Exrs.  790  ;   i  Saund.  216,  217,  The  form,  rather  than  the  substance, 

notes.  of     this    distinction     between    actions 

'  lb.;  Smith  v.  Sherman,  4  Cush.  408  ;  founded  in  contract  and  actions  founded 

Harker  v.  Clark,  57  Cal.  245  ;  Anderson  in  a  wrong,  appears  to    have   been  in- 

V.  Arnold,  79  Ky.  370.  sisted  upon  in  the  earlier  authorities. 

^  Long    V.  Hitchcock,    3  Ohio,   274  ;  Thus  it  was  said,  that  in  cases  where 

Walters    v.    Nettleton,    5    Cush.    544;  the   declaration    imputes   a   tort    done 

Nettleton    v.    Dinehart,   5    Cush.  543 ;  either  to  the  person  or  property  of  an- 

Deming  w.  Taylor,  i   Day,  285  ;  Wms.  other,  and  the //^a;  must  be  "  not  guilty," 

Exrs.  793  ;  McClure  v.  Miller,  3  Hawks,  the  rule  was  actio  personalis  moritiir  citni 

133;  Miller  z/.  Umberhower,  10  S.  &  R.  persona.      Hence,  the   doubt    formerly 

31;  Sawyer   v.   Concord   R.,  58  N.  H.  entertained  whether  aj'j?/w/j'/^  would  lie 

517.       Action  for  criminal  conversation  for  or  against  an  executor;  because  the 

does  not  survive.      Clark  v.  McClellan,  action  was  in  form  trespass  on  the  case, 

9  Penn.  St.  1 28.     Nor  an  action  for  ex-  and  therefore  supposed  a  wrong.    Wms. 

penses  incurred  by  the  testator  or  intes-  Exrs.  789;  Plowd.  180;  Cro.  Jac.  294; 

tate  in  defending  against  a  groundless  2  Ld.  Raym.  974. 
suit.     Deming  v.  Taylor,  i  Day,  285. 

24  369 


§   280  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

and  statute  4  Edw.  III.  c.  7  placing  the  executor,  as  to  all  such 
trespassers,  upon  the  sam-e  footing  which  his  testator  would  have 
occupied  had  he  still  remained  alive,  the  next  step  was  to  accord 
similar  benefits  to  the  estates  of  such  as  might  die  intestate.' 
By  an  equitable  construction  of  these  statutes,  an  injury  done  to 
the  personal  estate  of  the  decedent  during  his  lifetime  became 
distinguished  from  that  suffered  by  his  person,  so  that  in  effect 
an  executor  or  administrator  might  have  the  same  action  for  an 
injury  done  to  the  personal  estate  of  the  deceased  during  his 
lifetime,  whereby  it  had  become  less  beneficial  to  the  representa- 
tive than  it  should  have  been,  as  the  deceased  himself  might 
have  had  if  living,  whatever  the  form  of  action.^ 

§  280.  The  same  Subject.  —  Where,  therefore,  the  personal 
representative  can  show  that  damage  has  accrued  to  the  per- 
sonal estate  of  the  deceased,  through  breach  of  the  defendant's 
express  or  implied  promise,  the  later  rule  is  that  he  may  sue  at 
common  law  to  recover  damages,  even  though  the  action  itself 
sound  in  tort.  As  where  the  attorney  is  sued  for  his  negligence 
in  investigating  a  title  upon  which  a  transfer  of  property  de- 
pended.^ Or  where  one  contracting  for  safe  carriage  receives 
an  injury  which  results  in  a  loss  of  his  baggage  ;•♦  notwithstand- 
ing an  action  for  the  gra\'er  personal  injury  might  have  died  with 
the  sufferer.  As  these  statutes,  nevertheless,  made  no  change 
in  the  earlier  law,  so  far  as  the  survival  of  actions  for  injury 
done  to  the  freehold  was  excluded,  some  fine  distinctions  have 
been  made  by  the  courts  in  applying  this  later  rule  ;  distinctions 
founded  in  the  essential  differences  between  real  and  personal 
property.^ 

'  I  Saund.  217  ;  Cro.  Eliz.  384  ;  stats,  self  or  his  deputy  to  the  loss  of  the  right 

4  Edw.  III. ;   15  Edw.  III.,  c.  5  ;  Wms.  sued  upon  or  its  proper  security.     2  Ld. 

Exrs.  790.  Raym.  973;   Paine  v.  Ulmer,  7   Mass. 

^Trespass  or  trover  may,  accordingly,  317;  4  Mod.  403;   12  Mod.  72;  Wms. 

be  brought  by  the  executor  or  adminis-  Exrs.  791. 

trator.     Cro.    EHz.     377;    Manwell   v.  ^  Knights  r'.  Quarles,  4  Moore,  532. 

Briggs,    17    Vt.    176;    Potter  v.    \'an  -i  Alton  z/.  Midland  R.,  19  C.  B.  N.  .s. 

Vranken,  36  N.   Y.   619.     Debt  on  a  242. 

judgment  against  an  executor  suggest-  '  See    preceding   section.     Thus,   by 

xxx-^z.  devastavit,     i  Salk.  314.      Action  the  equity  of  statute  4  Kdw.   III.,  c.  7, 

against  a  sheriff  for  the  default  of  him-  the  executor  or  administrator  of  a  les- 


CHAP.   II,]  COLLECTION    OF    THE    ASSETS.  §   28o 

But  the  decisions  are  somewhat  confusing  on  this  point  ;  and 
it  must  not  be  supposed  that  tlie  mere  form  of  action  shall  con- 
clude the  question  of  survival  of  the  right  to  sue  ;  for  it  is  the 
gist,  rather,  and  substance  of  the  action  that  must  determine. 
The  principle  of  the  common-law  distinction  is  still  that  the  ex- 
ecutor or  administrator  shall  enforce  contract  rights  of  action  as 
collector  or  custodian  of  the  decedent's  personal  estate,  and  not 
pursue  wrongs  for  which  the  decedent  might  have  sought  a  per- 
sonal redress  in  damages  ; '  a  distinction  not  easily  maintained, 
however,  as  one  perceives  when  he  reflects  that  our  modern  in- 
corporeal personal  property,  with  its  claims  and  demands  of 
various  kinds,  has  expanded  in  sense  far  beyond  the  ancient 
theory  of  a  simple  cJiose  in  action  or  debt,  which  needed  only  to 
be  reduced  into  the  representative's  possession  or  collected. 
Pursuing  that  distinction,  judicial  policy  pronounces  finally 
against  the  survival  of  an  action  for  breach  of  promise  to  marry 
to  the  plaintiff's  representative,  unless,  perhaps,  as  rarely  hap- 
pens, the  foundation  of  damage  alleged  is  the  loss  of  plaintiff's 
personal  property  in  consequence ;  and,  indeed,  there  are  very 
sound  reasons  why  such  a  cause  of  action  should  not  be  per- 

see  might  maintain  an  ejectment  suit  movable  and  assets.  Williams  -■.  Bree- 
founded  on  transmission  by  death  of  a  don,  i  B.  &  P.  330.  So  where  grass  is 
title  to  chattels  real.  Wms.  Exrs.  793  ;  mowed  and  carried  off  as  hay,  trespass 
Doe  z'.  Porter,  3  T.  R.  13.  But  actions  is  maintainable.  Wms.  Exrs.  794; 
for  obstructing  rights,  diverting  a  water-  Wentw.  Off.  Ex.  167  ;  Halleck  v.  Mixer, 
course,  and  the  like,  did  not  survive  to  the  16  Cal.  574.  Whether  injury  to  grow- 
representative.  i  Saund.  217  a;  Wms.  ing  crops  might  be  sued  for,  on  the 
Exrs.  793.  Nor  could  the  representative  doctrine  of  a  constructive  severance  and 
maintain  trespass  quare  claiisuvi  /regit  emblements,  is  sometimes  considered, 
nor  an  action  merely  for  cutting  down  Wms.  Exrs.  793  ;  70  Me.  219. 
trees,  or  growing  corn,  etc.,  or  for  other  '  Chamberlain  v.  Williamson,  2  M. 
waste  committed  on  the  freehold  during  &  S.  408  ;  Smith  v.  Sherman,  4  Cush. 
the  lifetime  of  the  decedent.  Wms.  408;  Kelley  v.  Riley,  106  Mass.  341; 
Exrs.  793 ;  Williams  v.  Breedon,  i  B.  Hovey  v.  Page,  55  Me.  142  ;  Harrison 
&  P.  329;  Wentw.  Off.  Ex.  163,  14th  v.  Moseley,  31  Tex.  608.  But  cf.  Shuler 
ed.  And  yet  for  corn  and  wood  of  the  %■.  Millsaps,  71  N.  C.  297,  contra,  where 
decedent  cut  and  carried  away  during  the  death  was  that  of  the  defendant 
his  life  it  would  appear  that  the  exec-  instead.  Upon  the  subject  of  breach  of 
utor  might  bring  his  action;  for  sever-  promise  to  marry,  see,  generally,  Schoul. 
ance  converts  property  from  real  to  Hus.  &  Wife,  §§  40-51.  And  see  Fen- 
personal,  and  what  was  carried  away  lay  v.  Chirney,  20  Q.  B.  D.  494 ;  §  370, 
and  capable  of  being  carried  became  post. 


§'28l  EXECUTORS    AND    ADMINISTRATORS.  [PARTIV. 

mitted  to  survive  at  all.  And  so  with  respect  to  actions  against 
physicians  for  malpractice,'  or  against  an  attorney  through  whose 
unskilful  management  his  client  was  incarcerated.-  For  though 
the  form  of  action  may  be  contract,  the  damage,  substan- 
tially, laid  in  such  cases,  and  for  which  recovery  is  sought,  is  in 
reality  mental  or  physical  suffering  inflicted  ujion  the  person 
of  the  decedent  through  the  defendant's  negligence  or  mis- 
conduct. And,  notwithstanding  the  general  rule,  the  same  con- 
siderations do  not  always  appear  to  ha\e  mo\'ed  the  court  where 
the  plaintiff  sufferer  dies  first,  as  where  one  survives  the 
defendant  and  seeks  to  hold  the  defendant's  estate  liable  for  his 
own  redress. 3  Yet  the  law  as  to  survival  of  actions  is  usually 
defined  as  the  same  whether  ])laintiff  or  defendant  dies,  and 
reciprocal  in  its  operation. ■♦ 

§  281.  The  same  Subject;  Replevin,  Detinue,  etc.,  by  the  Rep- 
resentative.—  If  goods  or  chattels  of  the  decedent,  taken 
away  during  his  lifetime,  continue  /;/  specie  in  the  hands  of  the 
wrong-doer  after  his  death,  replevin  and  detinue  will  lie  for  the 
representative  to  recover  back  the  specific  things.^  And  for 
the  conversion  of  such  goods  or  chattels  an  action  lies  by  the 
executor  or  administrator  as  representative  of  the  deceased  to 
recover  their  value.^  In  general,  goods  or  chattels  taken  away, 
which  continue  as  such  in  the  hands  of  the  wrong-doer,  can  be 
recovered  by  the  representatixe  ;  or,  if  sold,  an  action  for  money 
had  and  received  will  lie  to  recover  their  value.^ 

'  Wms.  Exrs.  801  ;  Long?'.  Mornson,  of  decedent,  see  Griffith  t/.  Charlotte  R., 

14  Ind.  595.  23  S.  C.  25.     As  to  contingent  luilnlity 

^  Wms.   Exrs.    801.     Cf.   Knights  v.  of  a  stockholder   under  statute,  see  87 

Quarles,  supra.     And  see  language  of  Fed.  113. 

Lord  Ellenborough  in  Chamberlain  v.         '  Wms.  E.xrs.  787;   i   Saund.  217  ;/..• 

Williamson,  supra.  Jenney  ?'.  Jenney,  14  Mass.  232;  Reist 

'  Actions  of  deceit,  as  in  the*  sale  or  -■.   IleillM-enner,  11    S.  &  R.  131  ;  Elrod 

exchange  of  property,   do  not  at   com-  v.  .Mexander,  4   Ileisk.  342. 
mon  law  survive.     Cutting  v.  Tower.  14         "  Wms.  Exrs.  787  ;  Jenney  v.  Jenney, 

Gray,    183;    Newsom    v.    Jack.son,    29  supra;  Willard  v.  Hammond,  i   Fost. 

Geo.  61  ;  Coker  v.  Crozier,  5  Ala.  369;  382;  Eubanks  v.  Dobbs,  4  Ark.  173; 

Henshaw  e-.    Miller,    17    How.  (U.    S.)  Manwell  v.  Briggs,  17  Vt.  176;  Charlt. 

212;  Grim  v.  Carr,   51    Penn.  St.  533;  (Ga.)  261. 
Wms.  Exrs.  793.  note  by  Perkins.  ''  Potter  v.  Van   \'ranken,  36  N.  Y, 

*  As  to  suing  for  injury  to  the  corpse  619. 

^7^ 


CHAP.   II.]  COLLECTION    OF    THE    A.SSETS.  §   282 

§  282.    The  same  Subject;   Modern  Statutes  affecting  the  Rule. 

—  Modern  local  statutes  are  frequently  explicit  as  to  the  right 
of  action  by  or  against  the  personal  representative,  founded  in  a 
tort  ;  and  the  right  of  action  is  thus  extended  in  terms  more  or 
less  specific.  The  obvious  tendency  of  our  later  legislation  is 
to  remove  the  old  barriers  which  obstructed  the  survival  of  ac- 
tions, so  as  to  give  an  aggrieved  person's  estate  the  benefit  of 
pecuniary  compensation.  Thus,  in  Massachusetts,  it  is  now  pro- 
vided that  all  actions  which  would  have  survived,  if  commenced 
by  or  against  the  original  party  in  his  lifetime,  may  be  com- 
menced and  prosecuted  by  and  against  his  executors  and  admin- 
istrators.' 

Actions  of  replevin,  actions  for  goods  taken  and  carried  away 
or  converted  by  the  defendant  to  his  own  use,  and  actions  against 
sheriffs  for  malfeasance  or  nonfeasance  by  themselves  or  their 
deputies,  are  among  the  causes  specifically  enumerated  in  Ameri- 
can local  statutes ;  ^  causes,  some  of  them,  fairly  privileged  in 
this  respect,  irrespective  of  such  legislation.  In  various  States, 
actions  for  libel,  or  slander,  are  now  found  thus  to  survive  ;  ^  also 
actions  for  seduction  ;  *  actions  for  deceit  ;  5  and  actions  for  mal- 
practice by  a  physician,  apothecary,  or  attorney.'^ 

So,  too,  is  a  modern  legislative  disposition  strongly  manifested 
to  enlarge  and  confirm  the  representative's  remedies  for  such 
torts  as  may  have  been  committed  against  the  person  of  the  de- 
cedent. Thus,  a  Massachusetts  statute  provides  that  the  fol- 
lowing (among  other  causes  specified)  shall  survive  in  addition 
to  the  actions  which  survive  by  the  common  law  :  actions  of 
tort  for  assault,  battery,  imprisonment,  or  other  damage  to  the 
person. 7  The  sweeping  language  of  kindred  enactments  in  some 
other  States  confers  a  survival  of  actions  ex  delicto,  still   more 

'  Mass.  Pub.   Stats,  c.  i66,  §  i.     An  '  Haight  v.  Hoyt,  19  N.  Y.  464. 

action  against  an  apothecary  for  negli-  ^  Long  v.  Morrison,  14  Ind.  595  ;  Mil- 

gently  selling  a  deadly  poison  as  a  harm-  ler  z/.  Wilson,  24  Penn.  St.  114. 

less  medicine  will  consequently  survive.  '  Mass.  Pub.  Stats,  c.  165,  §  i.     The 

Norton  v.  Sewall,  106  Mass.  145.  words  "damage  to  the  person"  in  this 

^  Smith  z*.   Sherman,    4    Cush.    408;  statute  do  not  include  torts  not  directly 

Norton  v.  Sewall,  106  Mass.  143.  affecting  the  person,  but  only  the  feel- 

'  Nutting  V.  Goodridge,  46  Me.  82.  ings  or  reputation,  such   as  breach  of 

••  Shafer  v.  Grimes,  23  Iowa,  550.  promise,  slander,  or  malicious  prosecu,- 

in. 


§   283  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV, 

comprehensive.'  And  under  the  operation  of  appropriate  prac- 
tice acts,  the  executor  or  administrator  of  any  person  who  might 
have  sued  in  his  own  name,  during  his  life,  for  personal  injuries 
sustained  by  reason  of  the  negligence  of  some  town  in  keeping 
its  highways,  or  through  the  culpable  carelessness  of  some  rail- 
way or  other  common  carrier,  may  sue  as  representative  where 
his  decedent  died,  having  a  cause  of  action. - 

It  ma)'  perhaps,  be  generally  laid  down,  as  to  actions  of  this 
character,  that  the  legal  representative  is  not  entitled  to  recover, 
except  upon  such  a  state  of  facts  as  would  have  entitled  the  de- 
ceased himself  to  recover,  had  the  latter  been  living.^ 

§  283.  The  Subject  continued;  Action  for  Damages  in  causing 
Death.  —  A  remarkable  instance  in  which  the  rule  of  survival  of 
actions  has  been  enlarged,  relates  to  instantaneous  death.  At 
the  common  law  an  action  could  not  be  brought  by  one's  executor 
or  administrator  to  recover  damages  for  causing  the  decedent's 
death  ;  for  the  death  of  a  human  being  afforded  no  ground  of 
an  action  ex  delicto,  even  when  caused  by  another's  wrongful 
act  or  neglect.''  In  view,  chiefly,  perhaps,  of  the  great  damages 
to  which  travellers  in  great   numbers  have  become  exposed  in 

tion.     Norton  v.  Sewall,  106  Mass.  143;  the  plaintiff  dies  from  some  other  cause, 

Nettleton    v.    Uinehart,   5   Cush.    543 ;  the  right  of  action  survives.     Chicago 

Conly  z'.  Conly,  121  Mass.  550.  R.  ?'.  O'Connor,  119  111.  586.     A  right 

'  Shafer?'.  Grimes,  23  Iowa,  550.    See  of  action  in  the  federal  court  to  recover 

also  Adams  v.  Williams,  57   Miss.   38.  a  penalty  given  by  a  federal  statute  does 

Actions  for  malicious   arrest    and   im-  not  survive.    Schreiberz/.  Sharpless,  iio 

prisonment  survive.     Iluggins  v.  Tole,  U.  S.  76.     Nor  does  an  action  for  en- 

I    Bush.    192;   Whitcomb  -'.   Cook,   38  ticing  away  one's  servant.    Huff  j/.  Wat- 

Vt.  477.  kins,  20  S.  C.  477.     Nor  for  malicious 

^  Wms.   Exrs.  792,  note  by  Perkins;  prosecution.     41  Ark.  295. 
Hooper  v.  Gorham,  45   Me.  209;  De-         ^  See  Pound  v.  Pound,  64  Minn.  428; 

mond  V.  Boston,  7  Gray,  544.     See  as  to  in  Ala.  529. 

survival  of  suit  for  penalty  under  a  man-  *  Wms.  E.xrs.  797,  citing  preamble  of 
ufacturing  act,  where  the  plaintiff  dies  stat.  9  &  10  Vict.  c.  93;  Carey  v.  Berk- 
after  judgment,  Blake  z/.  Gnswold,  104  shire  R.,  i  Cush.  475;  Wyatt  v.  Wil- 
N.  V.  613.  A  cause  of  action  for  con-  liams,  43  N.  H.  102.  If  one  lives  from 
spiracy  to  cheat  and  defraud  or  for  de-  three  to  five  minutes  after  being  injured 
ceit  survives.  Brackett  v.  Griswold,  103  by  negligence,  the  cause  of  action  will 
N.  Y.  425;  Baker  7'.  Crandall,  78  Mo.  survive.  Kellow  z/.  Central  Iowa  R., 68 
584.  Where  pending  one's  action  for  Iowa,  470. 
personal  injuries  caused  by  negligence, 

374 


CHAP.   11.]  COLLECTION    OF    THR    ASSETS.  §   283 

these  modern  days  of  coach,  railway,  and  steamboat  transporta- 
tion, the  peculiar  trust  they  are  compelled  to  repose  in  those  who 
undertake  to  carry  them,  and  the  sound  policy  of  holding  trans- 
porting companies  to  the  exercise  of  a  reasonable  care  and  dili- 
gence in  managing  their  perilous  business,  statutes,  both  Eng- 
lish and  American,  have  been  enacted  during  the  present  cen- 
tury, providing  in  substance  that  damages  may  be  recovered,  not 
only  for  personal  injuries,  but  for  causing  one's  death  wrongfully 
and  carelessly.  Many  of  these  statutes  are  explicitly  directed 
against  railway  and  other  passenger  carriers ;  but  inasmuch  as 
modern  invention  tends  in  various  other  instances  to  place  in- 
dividuals within  the  power  of  corporations  and  private  persons 
who  undertake  to  perform  a  service,  —  to  say  nothing  of  killing 
by  assault  and  premeditated  violence,  such  as  the  criminal  codes 
of  all  ages  more  especially  provide  for,  —  the  humane  and  pru- 
dent legislation  of  the  nineteenth  century  takes  often  in  England 
and  the  United  States  a  more  general  scope. 

Of  this  latter  character  is  the  English  statute  9  and  10 
Vict.  c.  93,  which  enacts  that  whensoever  the  death  of  a  person 
shall  be  caused  by  a  wrongful  act,  neglect  or  default,  such  as 
would,  if  death  had  not  ensued,  have  entitled  the  party  injured 
to  maintain  an  action  and  recover  damages,  then,  and  in  every 
such  case,  the  person  who  would  have  been  liable  if  death  had 
not  ensued,  shall  be  liable  to  an  action  for  damages,  notwith- 
standing the  death  of  the  person  injured.'  Corresponding  en- 
actments are  to  be  found  in  most  parts  of  the  United  States, 
extending  to  corporations  as  well  as  individuals,  causing  such 
damage  or  death. ^  Actions,  under  statutes  of  this  character, 
are  sometimes  to  be  brought  in  the  name  of  the  State,  and  as 
though  by  instituting  a  sort  of  criminal  prosecution  against  a 
corporation ;  and  even  where  the  action  is  brought  as  a  mere 
civil  action  in  the  name  of  the  executor  or  administrator,  the 
benefits  are  made  to  redound,  as  far  as  possible,  to  surviving 
spouse,  children,  or  parent,  immediately,  rather  than  for  the  pur- 
pose of  supplying  assets  for  the  decedent's  general  estate. ^ 

'  Stat.  9  &  10  Vict.  c.  93,  cited  Wms.     Mass.  85  ;  Wliitford  v.  Panama  R.,  23 

Exrs.  796.  N.  V.  465 ;  Glass  v.  Howell,  2  Lea,  50. 

^  Richardson  57.  N.  Y.  Central  R.,  98         ^  Stat.   9   &    10   Vict.  c.  93;    Wms. 

375 


§    284  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

The  broad  underlying  principle  of  all  such  legislation  is  to 
render  persons  liable  in  damages  for  inflicting  an  injury  wan- 
tonly or  negligently,  whether  the  innocent  sufferer  by  such  tort 
dies  before  recovering  recompense  or  not,  and  whether  death 
ensues  instantaneously  or  later. 

§  284.  The  same  Subject;  Actions  founded  on  "Wrongs  done  to 
Real  Estate,  etc.  —  Actions  founded  on  wrongs  done  to  the  free- 
hold during  the  decedent's  life  did  not,  as  we  have  remarked, 
survive  at  the  common  law.'  Hence,  the  personal  representa- 
tive could  not  maintain  trespass,  q.  c.  /.,  nor  sue  for  merely  cut- 
ting down  trees  or  for  committing  waste  on  the  decedent's  real 
estate  during  his  lifetime.^  Nor  could  he  sue  for  diverting  a 
water-course,  obstructing  lights,  and  the  like.^  But  this  left 
injuries  to  a  decedent's  real  property,  committed  during  his  life- 
time, wholly  unredressed.  Hence,  the  English  statute  3  &  4 
Wm.  IV,  c.  42,  §  2,  reciting  this  palpable  injustice,  enacts  that 
executors  and  administrators  may,  within  a  year  after  a  dece- 
dent's death,  bring  actions  for  any  injury  to  his  real  estate  com- 
mitted within  six  months  before  his  death. '♦  And  legislation  in 
various  parts  of  the  United  States  upholds,  in  more  ample  terms, 
the  survival  of  actions  to  the  personal  representative,  for  dam- 
age done  to  real  as  well  as  personal  estate.' 

Exrs.  797,  and  note  by  Perkins.     And  wrong,   abates  upon  the  death  of  the 

cf.  in  general,  Sherm.  &  Redf.  on  Negli-  wrong-doer.     Hegerich    v.    Keddie,    99 

gence;  Cooley  on   Torts;    Bigelow  on  N.   Y.   258;    Boor  v  Lowrey,   103  Ind. 

Torts,  etc.,  where  the  subject  is  more  468 ;  §  370, /^j^. 

properly  discussed  at  length.     The  prac-  '  Supra,  §  279. 

titioner   will  be  guided  by  the  statutes  ^Williams  v.  Breedon,  i  B.  &  P.  329; 

of  his  own  State,  and  local  decisions  supra,  §  279. 

in  construction  of  the  same.  ^  w^^s.    Exrs.    793;  i     Saund.    217, 

The  right  of  a  representative  to  sue  note;  Kennerly  v.  Wilson,  i    Md.    102. 

under  modern  statutes,  such  as  we  have  A  representative  cannot  bring  an  action 

denoted  in  this  and  the  preceding  sec-  on  the  case  for  overflowing  the  lands  of 

tion,  does  not  necessarily  depend  upon  the  decedent  during  the  latter's  lifetime, 

the  question  whether  the  deceased  left  McLaughlin  v.   Dorsey,    1    Har.  &   M. 

a  wife  or  family,  but  upon  the  common-  224  ;  Chalk  v.  McAlily,  10  Rich.  92. 

law  right  of  the  injured  person  to  sue  if  ■•  Wms.  Exrs.  795,  796. 

he  were    living.     See  Quin  v.   Moore,  ^  .Mass.  Pub.  Stats,  c.  165,  §  i  ;  How- 

15   N.   Y.   432.     The   cause  of   action  cott ».  Warren,  7  Ired.  L.  20.     An  action 

where  death  was  caused  by  another's  of  tort  for  damages  caused  by  one's  mill- 


CHAP,    n.]  COLLECTION    OF    THK    ASSETS.  §    285 

Such  damages  when  recovered  by  the  personal  representative 
appear  to  belong  fitly  to  the  personal  estate  of  the  decedent ; ' 
the  right  of  action  and  money  compensation  being,  in  essence, 
personal  and  not  real  property. 

§  285.  Actions  upon  Covenants  Real,  etc.  ;  Whether  Represen- 
tative may  sue.  —  But  the  right  of  action  on  behalf  of  a  dece- 
dent's real  estate  has  been  denied  to  the  personal  representative 
in  various  instances,  on  the  principle  that,  the  land  having  de- 
scended to  the  heirs  or  vested  in  devisees,  the  right  of  action 
vests  more  appropriately  in  them.  Where  a  covenant  is  purely 
collateral  and  does  not  run  with  the  land,  but  its  benefit,  if  un- 
broken, would  pass  to  the  representative  as  personal  estate,  it 
would  appear  to  follow  the  usual  rule  of  contracts  as  to  survivor- 
ship ;  that  is  to  say,  the  right  of  action  for  its  breach  passes, 
upon  the  death  of  the  party,  to  his  executor  or  administrator, 
and  constitutes  personal  assets.'  And  hence,  it  is  held  that  for 
breach  of  a  covenant  not  to  fell  or  lop  off  certain  trees  expressly 
excepted  out  of  a  lease  of  lands,  the  lease  having  been  granted 
by  the  decedent  during  his  life,  and  the  breach  occurring  before 
his  death,  the  lessee  may  be  sued  by  the  personal  representative.^ 
So,  too,  that  the  executor  of  a  tenant  for  life  may  sue  for  the 
breach  of  a  covenant  to  repair,  incurred  by  his  lessee  during  the 
testator's  lifetime.'*  For,  unless  the  case  be  such  that  the  heir 
or  devisee  alone  could  have  sued,  the  personal  representative  is 
the  proper  person  to  bring  the  action,  if  a  suit  be  maintainable 
at  all. 

dam  may  thus  survive.  Brown  v.  Dean,  excepted  from  the  demise,  the  heir  or 
123  Mass.  254.  But  not  an  action  at  devisee  of  the  land,  on  which  the  trees 
law  for  fraudulent  representation  indue-  grew,  could  not  sue  for  a  breach  of  cov- 
ing one  to  part  with  real  estate.  Legate  enant,  whether  incurred  before  or  after 
w.  Mouhon,  115  Mass.  552.  See,  how-  the  death  of  the  covenantee.  Wms. 
ever,    Cheney   v.    Gleason,    125    Mass.  Exrs.  807. 

166,  as  to  the  equity  rule.  ■*  Rickettsz'.  Weaver,  12  M.  &  \V.  718. 

'  So  provided  in  stat.  3  &  4  Wm.  IV.  And  it  is  not  needful  that  the  executor 

c.  42 ;  Wms.  Exrs.  796.  in  such  a  suit  aver  damage  to  his  testa- 

*  Supra,  §  279.  tor's  personal  estate.     Leases  or  chat- 

*  Raymond  v.  Fitch,  2  Cr.  M.  &  R.  tels  real,  we  are  to  observe,  constitute 
588.  Unless  the  executor  had  the  personal  property,  being  estates  less 
power   to  sue,   observes   Williams,    all  than  a  freehold. 

remedy  was  lost,  for  the  trees  being  thus 

377 


^   2.S5  EXECUTORS    AND    ADMINISTRATORS.  [pART  IV. 

But  where  the  covenant  runs  with  the  freehold,  the  right  to 
sue  will  pass  to  the  heirs  of  the  covenantee  or  his  assigns,  and 
thus  in  many  instances  to  the  exclusion  of  the  executor  or  ad- 
ministrator ;  as  where  breach  is  made  of  the  covenant  of  war- 
ranty contained  in  a  conveyance.'  And  it  is  observable  that  a 
covenant  running  with  the  land  may  thus  go  to  the  heir,  not- 
withstanding the  covenant  does  not  mention  the  heir,  but  spe- 
cifies inaccurately  the  covenantee  and  his  executor  or  adminis- 
trator.^ According  to  the  earlier  authorities,  if  a  covenant 
running  with  the  land  was  broken  during  the  lifetime  of  the 
testator  or  intestate,  the  executor  or  administrator  might  sue 
upon  it,  doubtless  on  the  theory  that  damages  for  such  breach 
ought  to  be  regarded  as  part  of  the  decedent's  personal  estate 
devolving  upon  him.^  This  rule  still  applies  where  the  ultim.ate 
damage  was  sustained  in  the  lifetime  of  the  ancestor  ;  as  where, 
for  instance,  he  is  actually  evicted  from  the  land  through  the  fail- 
ure of  the  warranted  title,  or  by  some  breach  of  a  covenant  for 
quiet  enjoyment. ■♦  But  the  later  English  decisions  so  far  qualify 
the  older  rule  on  this  point  as  to  hold  that  damage  not  ultimately 
sustained  during  the  decedent's  lifetime,  upon  a  covenant  w^hich 
runs  with  the  land,  is  not  to  be  sued  upon  by  the  executor  or 
administrator ;  and  that  even  though  a  formal  breach  of  such  a 
covenant  may  have  occurred  before  the  ancestor  died,  yet  if  the 
ultimate  and  substantial  damage  was  not  until  after  the  ances- 
tor's death,  the  real  representative,  and  not  the  personal  repre- 
sentative, becomes  the  proper  plaintiffs 


'  Touchst.  175  ;  Wms.  Exrs.  801.  cover  possession  of  a  water  right  cannot 

^  Lougher  v.  Williams,  2  Lev.  92.  be  maintained  by  the  personal  represen- 

^  Lucy  z/.  Levington,  2  Lev.  26;  Com.  tative.     25  Colo.  360. 

Dig.  Covenant  B,  i  ;  Wms.  Exrs.  801  ;  "  Wms.  Exrs.  801  ;  Grist  v.  Hodges, 

Clark   V.    Swift,   3   Met.  390;  4    Kent  3  Dev.  L.  198. 

Com.  472  ;  Burnham  v.  Lasselle,  35  Ind.  '  Wms.  Exrs.  803,  804  ;  Kingdom  v. 

425.     An  action  for  damages  for  non-  Nottle,  i  M.  &  S.  355 ;  King  v.  Jones, 

performance  of  a  sealed  agreement  to  5  Taunt.  418;  4  M.  &  S.  188.     Weighty 

convey  land  is  to  be  brought  by  the  per-  authorities   in   the    United    States    are 

sonal  representative  and  not  by  the  heir  against  the  decision  of  Kingdom  v.  Not- 

of  the  covenantee.     Watson  v.  Blaine,  tie,  supra,  and  in  support  of  the  doc- 

12  S.  &  R.  131.     As  to  unlawful  entry  trine   that   the   breach  of   a   covenant 

and  detainer,  see  21  W.  Va.  440.  against   incumbrances  is  broken  imme- 

An  action  to  quiet  title  in,  or  to  re-  diately  by  any  subsisting  incumbrance; 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §    2(8/ 

Where  a  reversion  is  for  years,  the  executor  or  administrator 
is  the  proper  party  to  sue  on  a  covenant  made  with  the  lessor, 
whether  it  runs  with  the  land  or  not.' 

§  286.   The  same  Subject ;  Breach  of  Covenant  in  Deed  or  Lease. 

—  Executors  and  administrators  may  sue,  therefore,  upon 
breaches  of  covenant  under  a  deed  relating  to  the  realty  which 
have  occurred  during  the  life  of  the  decedent,  so  as  to  impair 
his  personal  estate ;  -  also  upon  covenants  in  an  underlease 
carved  out  of  a  leasehold  estate.^  Whether  breaches  occur  in 
a  lease  before  or  after  the  lessor's  death,  the  term  of  the  lease 
continuing,  the  right  of  action  is  in  the  executor  or  administra- 
tor ;  and  this  applies  to  the  covenant  for  payment  of  rent.'* 

§  287.  Action  for  disturbing  Possession;  Pe'w,  Lease,  etc.  —  A 
pew  being  treated  in  some  States  as  personal  property,  the  ex- 
ecutor or  administrator  exercises  the  usual  rights  as  to  dispos- 
ing of  it  or  rendering  it  otherwise  profitable  to  the  estate.  Be- 
fore distribution  of  the  estate  he  may  occupy  it  himself  or  let 
it ;  and  if  strangers  interfere  with  its  use  or  with  his  obtaining 
rent  for  it  from  others  in  his  representative  character,  he  may 
declare  for  an  injury  since  the  death  of  his  testate  or  intestate. 5 
Even  where  the  law  prevails  that  pew-holders  have  an  estate  in 
the  nature  of  a  right  of  occupancy  subject  to  the  superior  rights 
of  the  society  owning  the  fee  of  the  church,  the  same  doctrine 
appears  tenable,  the  heirs  acquiescing,  unless  it  is  shown  that 

and,  consequently,  that  the  grantor  or  '  lb. 

his  personal  representative  may  sue  upon  ''Taylor  Landl.  &  Ten.  §459.  See 
it.  4  Kent  Com.  472;  Hamilton  v.  §  353,  as  to  a  representative's  power  to 
Wilson,  4  Johns.  72;  Chapman  v.  deal  with  leases.  An  action  of  eject- 
Holmes,  5  Halst.  20 ;  Mitchell  v.  War-  ment  abates  on  the  death  of  the  defend- 
ner,  5  Conn.  497  ;  Garfield  ^/.  Williams,  ant.     Farrall    v.    Shea,    66    Wis.    561. 

2  Vt.  327;  Wilde,  J.,  in  Clark  v.  Swift,  But  after  the  death  of  a  plaintiff,  the 

3  Met.  390.  suit  may  be  revived  in  the  name  of  the 
■  Wms.  Exrs.  808.     Executor  of  ten-  personal  representative,  and  rents  and 

ant  for  years    comes    expressly  within  profits  recovered  by  way  of  damages, 

the  Stat.  32  Hen.  VHI.  c.  34.     lb.  Roberts  v.  Nelson,  86  Mo.  21. 

^Knights  V.  Quarles,  4  Moore,  532;         '  Perrin  v.   Granger,  33  Vt.    loi  ;    i 

Taylor  Landl.  &  Ten.  §  459.  Schoul.  Pers.  Prop.  158. 

379 


§    289  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 

the  property  has  been  distributed  to  the  heirs,  or  at  all  events 
gone  into  their  possession  and  control.' 

So  may  the  representative  as  such  maintain  qiiare  impedit 
for  a  disturbance  in  his  own  time,  or  ejectment  upon  an  ouster 
after  his  testator's  or  intestate's  death,^  where  the  latter  had  a 
lease  for  years  or  from  year  to  year. 

§  288.  In  General,  Personal  Representative  sues  for  Assets  of 
the  Estate.  —  In  general,  a  suit  in  law  or  equity  to  recover  the 
personal  assets  of  an  estate,  must  be  brought  by  the  personal  rep- 
resentative.^ An  order  from  the  probate  court  or  ordinary  is  not 
usually  needed  for  the  representative  to  bring  his  suit,  unless 
perhaps  it  be  against  the  heirs.'' 

§  289.  Suits,  whether  to  be  brought  by  Representative  in  his 
own  Name  or  as  Representative.  —  As  a  general  rule,  the  execu- 
tor or  administrator  cannot  sue  in  his  individual  name  for  de- 
mands due  in  his  decedent's  lifetime  to  the  estate  which  he 
represents,  but  must  sue  in  his  representative  character ;  '>  while 
upon  demands  created  since  his  decedent's  death  the  reverse 
holds  truc.^ 

But  to  this  doctrine  are  apparent  exceptions.  Thus,  an  ex- 
ecutor or  administrator  may  sue  in  his  own  name,  without  de- 
claring his  representative  character,  on  a  note  given  to  him  for 
the  purchase-money  of  goods  sold  by  him  belonging  to  the 
estate  of  the  decedent. ^     Or  upon  any  negotiable  note  or  other 


'  lb.  56  Pa.  St.  166  ;  Middleton  v.  Robinson, 

^^Doe  V.   Porter,  3  T.  R.    13;     Cro.  i    Bay   (S.   C.)  58;  Davis  v.  Rhame,  i 

Eliz.   207;    4   Co.  95  a;     Wms.    Exrs.  McCord  Ch.   191;  Baxter  v.  Buck,  10 

878.  Vt.   548;   Webster  v.   Tibbits,  19  Wis. 

'Pope  V.  Boyd,  22  Ark.  535  ;   Hellen  438. 

V.  Wideman,  10  Ala.  846;  Johnson  v.  ^Jordan   v.    Pollock,     14     Ga.     145; 

Pierce,  12  Ark.  599;  Brunk  v.  Means,  Raid  z'.  Butt,  25  Ga.  28. 

II  B.  Mon.  214;  Snow  J/.  Snow,  49  Me.  ^Tappan  v.  Tappan,    10    Fost.    50; 

159;    Sears  v.  Carrier,  4   Allen,   339;  Patchen  v.  Wilson,  4   Hill  (N.  Y.)  57; 

Cheely  v.  Wells,  ^t^  Mo.  106;  Howell  Rogers  v.  Gooch,  87  N.  C.  442. 

V.   Howell,  37  Mich.   124;  Woodin  v.  *  Klines'.  Gathart,  2  Penn.  491. 

Bagley,  13  Wend.  453 ;  Clason  z/.  Law-  'Evans   v.    Gordon,    8    Port.    (.Ma.) 

rence,  3   Edw.  48;   Pauley  v.  Pauley,  7  346;  Goodman  z/.  Walker,  30  Ala.  482  ; 

Watts,   1 59 ;    Linsenbigler  v.  Gourley,  Oglesby  v.  Gilmore,  5  Ga.  56  ;  Gunn  v. 

380 


CHAP.    II.]  COLLECTION    OF    THE    ASSETS.  §    29O 

instrument  which  he  holds,  whose  tenor  makes  it  payable  to 
bearer  ; '  for  possession  of  such  an  instrument  is  sufficient /rma 
facie  evidence  of  title  to  the  holder.  Or  on  a  promissory  note 
payable  to  himself  individually,  which  he  has  taken  in  settlement 
or  compromise  of  a  debt  or  demand  due  the  estate.^  And  an 
executor  or  administrator  may  in  his  own  name  sue  to  recover 
the  price  of  personal  property  sold  by  him  at  public  or  private 
sale.^  So  has  he  been  allowed  to  bring  an  action  of  replevin 
for  property  of  the  deceased  in  his  own  name.'*  It  may  often 
be  more  convenient  for  the  representative  to  sue  individually  in 
such  instances,  and  he  is  not  debarred  from  so  doing. 

§  290.  The  same*  Subject ;  General  Principle  as  to  suing  in 
Representative's  Individual  or  Official  Name.  —  The  COmmon-law 
distinction,  as  laid  down  in  some  well-considered  American 
cases,  is  this  :  Where  the  right  of  action  accrued  to  the  testator 
or  intestate  in  his  lifetime,  or  to  the  executor  or  administrator 
after  the  death  of  the  testator  or  intestate,  either  upon  a  con- 
tract express  or  implied,  made  with  the  testator  or  intestate,  or 
for  an  injury  done  to  the  property  of  the  testator  or  intestate 
during  his  lifetime,  the  executor  or  administrator  should  sue  in 
his  representative  character.  But  where  the  right  of  action  ac- 
crues to  the  executor  or  administrator  upon  a  contract  made  by 
or  with  him  as  such,  since  the  death  of  the  testator  or  intestate, 
or  for  an  injury  done  to,  or  a  conversion  of,  the  property  of  the 
testator  or  intestate  in  the  hands  or  possession  of  the  executor 
or  administrator  after  the  death  of  the  testator  or  intestate,  the 
action  may  and  ought  to  be  brought  in  the  proper  name  of 
the  executor  or  administrator,  but  not  as  such.^  This  distinc- 
tion does  not  absolutely  apply,  however,  to  suits  upon  negotiable 
instruments,  nor  is  it  uniformly  observed  in  the  practice  of  our 

Hodge,  32  Miss.  319 ;  Catlin  t'.  Under-         ^  Stewart    v.    Richey,  2    Harr.    164; 

hill,  4  McLean,  337.  Kline  v.  Gathart,  2   Penn.  491.     And 

'Lyon   V.   Marshall,    11    Barb.    241;  see    Thornton    v.    Smiley,    i    111.     13; 

Brooks  V.  Floyd,  2  McCord,  364  ;  Hoi-  Patchen  v.  Wilson,  4  Hill,  57  ;  Carter 

combe  z/.  Beach,  112  Mass.  450.  v.    Estes,    11    Rich.    363;    Manwell   v. 

^  McGehee  v.  Slater,  50  Ala.  431.  Briggs,  17  Vt.  176  ;  Carlisle  v.  Burley, 

^  Laycock  v.  Oleson,  60  111.  30.  3  Greenl.  250. 

*  Branch  v.  Branch,  6  Fla.  314. 


§   291  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

States.  And  we  should  conclude  that  the  representative's  right 
to  sue,  whether  officially  or  in  his  own  name,  is  to  a  great  ex- 
tent optional  on  his  part,  or  else  determined  by  the  tenor  of  the 
instrument  sued  upon. 

Where  the  executor  or  administrator  sues  on  a  contract  made 
with  his  testator  or  intestate,  he  must,  under  such  a  rule,  sue 
necessarily  in  his  representative  character,  although  the  time  for 
payment  or  performance  had  not  arrived  when  the  testator  or 
intestate  died.' 

§  291.  This  Principle  applied  in  suing  for  Torts  affecting  the 
Property.  —  Where  goods  and  chattels  which  belonged  to  the 
decedent  at  the  time  of  his  death  are  afterwards  tortiously  taken 
or  wrongfully  converted,  the  personal  representative  may  sue  in 
his  own  name  without  calling  himself  executor  or  administrator  ; 
for  the  property  vested  in  him  on  the  death  of  his  testator  or 
intestate,  and  hence  the  wrong  may  be  considered  as  done  to 
himself.^  And  such  is  the  special  property  of  the  executor  or 
administrator  in  the  decedent's  goods  and  chattels,  as  a  title  he 
may  assert  or  not,  that  according  to  the  better  opinion  the  per- 
sonal representative  has  the  option,  when  he  sues  in  damages 
for  the  tort  thus  committed,  either  to  sue  in  his  own  represent- 
ative capacity  and  declare  as  executor  or  administrator,  or  to 
bring  the  action  in  his  own  name  and  in  his  individual  charac- 
ter.3  Not  only  may  trover  or  trespass  be  maintained,  and  other 
actions  of  tort  upon  this  principle,  but  likewise  replevin. ■» 

An  action  may  be  brought  by  the  personal  representative  in 
his  own  name,  accordingly,  notwithstanding  the  tort  was  com- 
mitted after  the  death  of  the  testate  or  intestate,  and  before  let- 
ters were  issued  or  a  probate  granted  ;  5   and,  we  may  add, 

■  Bronson,  J.,  in  Patchen  v.  Wilson,  ''  Branch     v.    Branch,     6    Fla.    314- 

4  Hill,  57.  There  may  be  trespass  for  wasting  and 

^  Patchen  v.  Wilson,  4  Hill,  57,  58  ;  destroying  as  well  as  for  carrying  away 

Carlisle  v.  Burley,  3  Greenl.  250;  Sims  the  goods  of  the  decedent.      Snider  v. 

V.   Boynton,   23  Ala.   353 ;   Skelheimer  Croy,  2  Johns.  227. 

V.    Chapman,    32   Ala.   676;   Gage   v.  '  Wms.  Exrs.  876 ;  Bollard  v.  Spen- 

Johnson,  20  Miss.  437.  cer,  7  T.  R.  358 ;    Hollis  v.  Smith,  10 

s  Bollard  v.   Spencer,  7   T.    R.    358 ;  East,  294  ;  Ham  v.  Henderson,  50  Cal. 

Hollis  V.  Smith,  10  East,  295;  Ham  v.  369;  Wms.  Exrs.  630,  637,  877. 
Henderson,  50  Cal.  367. 

382 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §   292 

whether  the  representative  was  ever  actually  possessed  of  the 
goods  or  not.' 

In  suing  thus,  in  an  action  of  trover,  the  executor  or  admin- 
istrator may,  if  he  bring  the  action  in  his  own  representative 
name,  either  allege  that  his  testator  or  intestate  was  possessed 
of  the  goods,  and  the  defendant,  after  his  death,  converted 
them,  or  that  he  himself  was  possessed  as  such  executor  or  ad- 
ministrator, and  the  defendant  converted  them.^ 

§  292.    Suits    on   Contracts   made  Tvith   the  Representative. — 

Upon  a  contract  expressed  or  implied,  made  with  the  execu- 
tor or  administrator  as  such,  after  the  death  of  his  testator  or 
intestate,  the  action  may  be  brought  by  the  representative  in  his 
own  name  ;  ^  though  the  opinion  best  sanctioned  by  English  and 
American  authorities  is,  that  he  may  elect  to  sue  either  in  his 
individual  or  his  representative  capacity.'*  As  upon  a  contract 
made  with  reference  to  the  sale  or  disposition  of  particular  as- 
sets, or  to  recover  the  price  thereof. '  Or  for  money  lent  by 
him  as  executor  or  administrator.^  And  in  various  cases  where 
assumpsit  is  maintainable  for  recovering  money  paid  by  the 
representative  to  the  use  of  the  defendant. ^  It  is  observable 
that  contracts  made  by  a  representative  bind  him  individually  ; 
and  yet  that  of  such  contracts,  some  may  be  within  the  clear 
scope  of  one's  official  authority  and  some  without  it ;  and  hence, 

'  Hollis  V.  Smith,  10  East,  294;  Val-  *Wms.  Exrs.  878,  and  Perkins's  note, 

entine  z/.  Jackson,  9  Wend.  302.     Bui-  '  Evans  z*.  Gordon,  8  Port.  346;  Ogles- 

ler,   J.,  in  Cockerill  v.  Kynaston,  4  T.  by  v.    Gilmore,  5    Ga.   56 ;  Laycock  v. 

R.    281,    is    overruled    on   this    point.  Oleson,  60  111.  30;  Gunn  v.  Hodge,  32 

Wms.  Exrs.  876.  Miss.  319  ;  Goodman  v.  Walker,  30  Ala. 

^Wms.  Exrs.  877.     The  personal  rep-  482;    Catlin  v.  Underhill,  4    McLean, 

resentative,  either  as  such  or  in  his  own  337  ;  Patterson  v.   Patterson,  59  N.  Y. 

name,  may  sue  the  sheriff  for  the  escape  574;  Haskell    v.    Bowen,    44   Vt.  579; 

of  one  in  execution  on  a  judgment  re-  Eagle  v.  Fox,  28  Barb.  473;  Peebles  z'. 

covered   by  him  in  his    representative  Overton,    2    Murph.    384 ;    Mosman  v. 

capacity.     Bonafous  v.  Walker,  2  T.  R.  Bender,  80  Mo.  579. 

126;    Crawford   v.    Whittal,  Dougl.  4,  '■3B.  &Ald.  365;  Gallant  v.  Boute- 

note.  flower,  3  Dougl.  34. 

3  Stewart  v.  Richey,  6  Harr.  164,  and  '  3  B.  &  Aid.  365  ;  Cowell  v.  Watts, 

other  cases,  supra,  §  290.      Otherwise  6  East,  405  ;  Ord  v.   Fenwick,  3   East, 

where  the  contract  was  made  with  the  103;  Wms.  Exs.  879. 
testator  or  intestate  himself.     lb. 


§   293  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

perhaps,  is  a  source  of  confusion  in  drawing  the  line.  Were 
the  contract  clearly  without  the  scope  of  his  representative 
capacity,  he  would  probably  be  compelled  to  sue  upon  it  as  an 
individual,  if  he  could  sue  at  all. 

On  all  causes  of  action,  therefore  accruing  after  the  dece- 
dent's death  and  included  within  the  scope  of  his  official 
powers,  the  preferable  rule  is  that  an  executor  or  administrator 
may  sue,  either  in  his  own  individual  or  his  representative 
capacity,  at  his  option  ;  '  and  it  is  well  established  by  the  later 
cases  that  this  option  may  be  exercised  by  the  personal  repre- 
sentative wherever  money  recovered  upon  the  contract  made 
with  him  will  be  assets  ;'  though  some  of  the  older  cases  appear 
to  have  insisted  strenuously  that  he  must  sue  as  an  individual.' 

§  293.  Suit  by  Representative  on  Promissory  Note  or  Other 
Negotiable  Instrument. —  With  respect  to  negotiable  instruments, 
there  are  various  decisions,  pointing  to  the  conclusion  that  if  a 
bill  be  indorsed  to  A.  B.  as  executor,  he  may  declare  accord- 
ingly in  suing  the  acceptor  ;  •*  and  that  an  executor  or  adminis- 
trator may  sue  as  such  on  a  promissory  note  given  to  him  in 
that  capacity  after  the  death  of  his  testate  or  intestate.s  Also, 
that  upon  an  instrument  payable  to  the  deceased  by  name  or  his 
order,  and  coming  to  the  hands  of  his  executor  or  administrator, 
the  latter  may  sue  in  his  representative  character.^ 

Upon  a  bill,  note,  or  other  negotiable  instrument,  which  by 
suitable  indorsement,  or  according  to  its  original  tenor,  becomes 
payable  to  the  bearer,  the  executor  or  administrator  who  holds 
it,  may,  undoubtedly,  like  any  "bearer,"  sue  in  his  own  name.^ 

'Mowry  v.    Adams,    14    Mass.  327;  <  King  v.    Thorn,    i    T.    R.  487;  10 

Merritt  v.  Seaman,  6  Barb.  330 ;   Knox  Bing.  55. 

V.    Bigelow,    15    V^'^is.    415;  Lawson  7^.  -' Partridge  z/.  Court,  5    Price,  412;  s. 

Law-son,  16  Gratt.  230.  C,  7  Price,  591  ;  Wms.  Exrs.880. 

^  Wms.  Exrs.    881,  and   cases  cited  ;  ''  Murray  v.  E.  I.  Co.,  5  B.  &  Aid.  204. 

AbboU    ?■.    Parfit,  L.  R.  6   Q.   B.  346;  And    see    Baxter  v.  Buck,  10  Vt.  548; 

Heath  -'.    Chihon,    12    M.  &  W.  637;  Litchfield  <v.  Flint,  104  N.  Y.  543. 

Cowell  V.   Watts,  6  East,  410;  Boling-  '  Holcombe  z/.  Beach,  1 12  Mass.  450; 

broke  v.  Kerr,  L.  R.  i    Ex.  222  ;    Bogs  Lyon  z/.  Marshall,  11  Barb.  241  ;  Brooks 

V.  Bard,  3  Rawle,  102.  v.    Floyd,   2    McCord,  364  ;  Sanford  v. 

Mo  Mod.  315;  3  B.  &  P.  II  ;   Wms.  McCreedy,  28  Wis.  103;  Rittenhousey. 

Exrs.  881.  Anmerman,  64  Mo.  197. 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §   294 

And  he  may  sue  in  his  own  name  on  a  promissory  note  payable 
to  himself  individually,  which  he  takes  upon  a  transaction  made 
with  himself  in  the  course  of  settling  the  estate,  and  in  general 
on  a  note  given  him  in  the  course  of  his  own  dealings  with  the 
estate.'  If  payable  to  him  individually  or  as  bearer,  his  suit  in 
his  own  name  follows  the  familiar  rule  applied  to  negotiable  in- 
struments. And  even  if  specifically  payable  to  A.  B.,  described 
as  executor  or  administrator,  he  will  not  be  required  to  prove 
his  fiduciary  character,  for  the  words  descriptive  of  such  char- 
acter in  the  instrument  may  here  be  regarded  as  immaterial,^ 

Our  conclusion,  therefore,  is  that  where  the  personal  repre- 
sentative receives  a  negotiable  instrument  whose  avails  when 
collected  will  be  assets  belonging  to  the  estate,  he  may  prose- 
cute not  only  in  his  own  right,  but  (though  it  be  given  to  him 
after  the  decedent's  death)  at  his  option  in  his  representative 
character  instead.^ 

§  294.  General  Conclusion  as  to  Suing  upon  Contracts  in  the 
Individual  or  Representative  Character.  —  The  principle  of  those 
older  cases  which  insisted  upon  one's  individual  suit,  appears  to 
have  been  that  the  executor  or  administrator,  by  the  contract 
made  with  himself,  changed  the  nature  of  the  debt  originally 
due  to  his  testate  or  intestate  ;  and  it  was  thought  that  if  this 
were  done  the  representative  ought  to  sue  for  the  new  debt  in 
his  own  name,  and  not  in  his  representative  character.'*  It 
would  seem  still,  according  to  English  authority,  that  if  the  ex- 
ecutor or  administrator  plainly  changes  the  nature  of  the  debt, 
as  by  taking  a  bond  from  a  simple  contract  debtor,  though  the 
bond  be  given  to  him  as  executor  or  administrator,  the  creation 
of  a  new  personal  obligation  of  a  higher  nature  precludes  his 

'  Laycock  t'.  Oleson,  60  111.  30 ;  Evans  until  after  the  death  of  the  intestate. 

V.  Gordon,  8  Port.  346,  and  other  cases  Baxter  z/.  Buck,  10  Vt.  548.     See  §  408, 

cited  supra,  §  292.  for  application  of  this  principle  to  ad- 

^  Laycock  v.  Oleson,  60  111.  30.  ministration   de   bonis   non  ;    Barron  v. 

'An  administrator  in  his   representa-  Vandvert,  13  Ala.  232;  Catherwood  z/. 

tive  capacity  may  sue  as  bearer   on  a  Chabaud,  i  B.  &  C.  150. 

note  payable  to  the  intestate  or  bearer,  ^  Wms.    Exrs.    881;     10    Mod.    315; 

although  such  note  was  not  delivered  Helm  v.  Van  Vleet,  i  Blackf.  342. 

25  385 


§   295  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

suit  in  the  representative  capacity  upon  such  an  instrument.' 
But  we  may  question  the  reasonableness  of  the  exception,  and 
prefer  to  extend  the  modern  doctrine  of  a  representative's  op- 
tion to  such  a  case ;  for  courts  should  lean  against  a  judicial 
construction  which  tends  to  deprive  a  plaintiff  of  just  remedies, 
by  leaving  him  in  a  perilous  dilemma  as  to  the  forms  he  should 
pursue. 

§  295.  Prosecution  of  Suits  in  Equity  by  the  Personal  Repre- 
sentative. —  The  executor  or  administrator  of  a  deceased  party 
may,  in  respect  of  the  transmission  of  the  interest  to  him,  be 
admitted  as  his  representative  in  a  suit  in  equity.  Formerly  a 
bill  of  revivor  was  necessary  ;  but  modern  chancery  practice, 
aided  by  the  legislation  of  later  times,  favors  a  continuance  of 
the  suit  by  a  mere  order  to  revive,  the  representative  appearing 
or  being  summoned  to  prosecute  or  defend.^ 

All  equitable  interests  of  the  deceased,  in  the  nature  of  assets, 
are  justly  enforceable  in  a  court  of  equity  by  the  executor  or 
administrator  suing  in  his  representative  capacity.  Thus,  a  bill 
in  equity  will  lie  by  an  executor  or  administrator  against  the 
general  agent  of  his  testate  or  intestate  for  a  discovery  and  an 
account  of  the  latter's  transactions  with  his  principal ;  ^  or  for 
discovery  of  the  personal  estate  of  the  deceased  ;  ^  though,  in 
this  respect,  local  statutes  in  the  United  States  prefer  an  inex- 
pensive summary  proceeding  in  the  probate  court  against  persons 
suspected  of  concealing  or  embezzling  the  property  ;  s  or  to  com- 
pel a  legatee  to  refund  a  legacy  on  good  reason,  such  as  a  defi- 
ciency of  assets  ;  ^  or,  similarly,  for  reimbursement  of  sums  paid 
to  creditors  beyond  personal  assets  ; ''  or  to  restrain  a  receiver  of 
letters  from  the  decedent  from  publishing  them  ;  **  or  to  procure 

'  Wms.  Exrs.  882  ;  Price  v.  Moulton,  chancery  practice  in  relation  to  reviving 

10    C.    B.   561 ;  Partridge   v.   Court,   5  sviits  in  equity. 

Price,  419.  ^  Simmons  7'.  Simmons,  33  Gratt.  451. 

*  Wms.     Exrs.    890;  Daniell     Pract.  ■*  i  Vern.  106. 

785;  15  &  16  Vict.  c.  86,  §  52  ;  Cheney  '  Supra,  §  270. 

V.  Gleason,  125  Mass.  166;  Mass.  Pub.  *Doe  v.  Guy,  3  East,  123. 

Stats,  c.  165,  §  19  ;  Egremont  v.  Thomp-  '  Williams  v.  Williams,  2  Dev.  Ch.  69. 

son,  L.  R.  4  Ch.  448.     See  the  statutes  °  Thompson  v.  Stanhope,  Ambl.  737 ; 

of  the  respective  States  for  the  modern  Queensbury  v.  Shebbeare,  2  Eden,  329. 

386 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §    297 

title  to  specific  assets  which  stand  through  some  fraud  or  mis- 
take in  another's  name,  so  that  he  cannot  assert  his  rights  at 
law.' 

§  296.  Proceedings  to  obtain  Possession  of  Specific  Negotiable 
Instruments,  etc.,  belonging  to  the  Estate  ;  Agency.  —  Where  notes 
or  other  negotiable  instruments  against  various  parties,  which 
belonged  to  the  decedent,  and  were  formerly  held  by  him,  have 
come  into  the  hands  of  a  third  party  under  an  indorsement  and 
delivery  fraudulently  obtained,  the  representative  has  the  right 
to  sue  for  their  value  at  law,  as  for  a  tort.  But  he  may,  in- 
stead, proceed  to  obtain  the  specific  instruments  ;  and  where 
replevin  does  not  furnish  an  adequate  remedy,  he  may  bring  a 
bill  in  equity  to  compel  the  delivery  of  the  specific  instruments 
to  himself,  and  to  restrain  the  holder  from  prosecuting  suits  at 
law  upon  such  instruments,  or  parting  with  their  possession  ; 
joining  as  parties  to  the  bill  those  indebted  upon  the  instru- 
ments. He  should  elect,  however,  whether  to  proceed  thus  for 
the  specific  chattels  incorporeal,  or  to  sue  for  their  value. ^ 

Where  the  representative  employs  an  agent  to  collect,  he 
does  not  empower  him  to  sell.^ 

§  297.  Pursuit  of  Assets  where  Decedent  fraudulently  Trans- 
ferred. —  The  representative's  duty  in  pursuing  assets  extends 
to  all  assets  of  the  decedent  which  are  applicable  to  the  pay- 
ment of  debts."*  Not  only  may  he  in  some  instances  set  up 
fraud  to  defeat  the  decedent's  own  act,  but  he  may  institute 
proceedings  for  setting  aside  a  fraudulent  transfer  made  by  the 
decedent ;  and  if  he  neglects  doing  so,  to  the  injury  of  creditors 
and  others  concerned  in  such  assets,  he  renders  himself  liable 

And  see  2  Story  Eq.  Jur.  §  946  et  seq. ;  afforded  in  equity  on  the  ground  of  mis- 

Wms.  Exrs.  1901.     As  to  prosecuting  a  take,  where  the  representative  was  cul- 

bill  in  equity  to  recover  land  or  its  spe-  pable.     Stewart  v.  Stewart,  31  Ala.  207. 

cific  avails,  still  held  by  a  party  to  a  '  Burrus  v.  Roxilhac,  2  Bush,  39. 

fraud  upon  the  decedent,  see  Cheney  v.  -  Sears  v.  Currier,  4  Allen,  339.     And 

Gleason,  125  Mass.  166.     See,  further,  see  Morton  v.  Preston,  18  Mich.  60. 

Rice  V.  Rice,  107   Mich.  241,  as  to  as-  ^  Kennedy  v.  Chapin,  67  Md.  454. 

signment  of  a  mortgage  under  an  im-  *  Welsh  v.  Welsh,  105  Mass.  229. 
plied  reservation  of  interest.     No  relief 


§   299  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 

as  for  other  malfeasance  or  non-feasance  in  the  performance  of 
his  trust,  and  under  like  limitations.' 

The  executor  or  administrator  may  consequently  maintain  an 
action  at  law,  or  a  suit  in  equity,  for  the  purpose  of  setting  aside 
a  transfer  or  conveyance  of  personal  property  made  by  his  de- 
cedent for  the  purpose  of  defrauding  his  creditors,  notw^ith- 
standing  the  decedent  himself  would  have  been  barred.^  For 
a  personal  representative  is  not  estopped  by  the  acts  and  con- 
duct of  his  testator  or  intestate  under  all  circumstances  ;  but  is 
bound  to  settle  the  estate  as  justice  and  the  interests  of  all  con- 
cerned, in  their  turn,  may  demand.  And  in  bringing  such  pro- 
ceedings he  should  use  due  diligence.^ 

§  298.    Representative's  Power  to  Compromise  or   Arbitrate.  — 

As  incidental  to  the  power  to  sue  and  collect,  the  executor  or 
administrator  ought  to  have  a  right  to  arbitrate  or  compromise 
any  demand  of  the  decedent  which  he  represents,  provided  he 
act  within  the  range  of  a  reasonable  discretion  as  to  the  true  in- 
terests of  the  estate.-'  Nevertheless,  as  will  hereafter  appear, 
the  responsibility  is  a  perilous  one,  according  to  numerous 
authorities,  unless  reduced  by  express  statute.^ 

§  299.  Effect  of  Contract  or  Covenant  to  the  Decedent,  •which 
did  not  name  his  Executors,  Administrators,  etc.  —  A  contract  or 
covenant  which  confers  a  valuable  right  or  cause  of  action,  is 
well  expressed  to  be  for  the  benefit  of  "  A.,  his  executors  or 

^  Supra,    §    220;   Wms.    Exrs.    1679,  '^^"^  v.  Peeler,  8   Pick.  254;  Judson  ». 

and  note  by  Perkins;  Cross  v.  Brown,  Connolly,  4   La.  Ann.   169;    Morris  v. 

51    N.  H.  488;  Lee  7/.    Cha.se,   58  Me.  Morris,  5   Mich.  171  ;   Brown  v.  Finley, 

436;    Danzey   v.    Smith,    4    Tex.    411.  18   Mo.   375;  McKnight  7'.   Morgan,  2 

But    the    representative   should  usually  Barb.  171  ;  §  220;  55  Ohio  St.  294. 

bring  proceedings  specially  to   recover  ^  Andrew  7'.  Hinderman,  71  Wis.  148. 

property    fraudulently    transferred    by  See  §  213. 

the  decedent.     He    cannot,    it  is  said,  *  The  right  to   arbitrate  exists  inde- 

avoid    a    contract    made    by    the    de-  pendently  of  statute,  and  an  award  need 

cedent  on  the  ground  that  it  was  made  not  follow  the  statute  mode.     Wamsley 

in  fraud  of  creditors.     See  Pringle  v.  v.  Wamsley,  26  W.  Va.  45. 

McPherson,   2    Desau.    524.     But    cf.  '  See    Wms.  Exrs.    1799-1801  ;  c.  5. 

cases  cited  above.  post,  §§  386,  387. 

'  Martin  v.  Root,  17  Mass.  222  ;  Gib- 

388 


"HAP.    II.]  COLLECTION    OF    TH?:    ASSETS.  §    3OO 

idministrators,"  or  with  some  similar  expression,  for  its  intent 
:hen  is  plainly  not  limited  to  a  recovery  by  A.  in  person.  But, 
3n  the  other  hand,  a  limitation  of  the  benefit  to  A.  in  person, 
md  that  its  enjoyment  shall  depend  upon  the  precarious  tenure 
)f  his  life,  is  not  to  be  presumed  ;  though  every  contract  or 
:ovenant  should  be  interpreted  according  to  its  plain  or  natural 
,ense  as  being  founded  in  personal  considerations  or  the  reverse. 
Hence,  where  a  cause  of  action  accrued  in  the  lifetime  of  the 
decedent  on  a  contract  or  covenant  made  to  him  without  nam- 
ing "  executors  or  administrators,"  such  cause  of  action,  gener- 
ally speaking,  will  pass  to  the  personal  representative  for  the 
benefit  of  the  estate."  And  even  though,  because  of  the  terms 
Df  such  contract  or  covenant,  as,  for  instance,  in  requiring  per- 
formance at  a  future  date,  the  cause  of  action  did  not  actually 
iccrue  or  become  enforceable  until  after  the  decedent  died,  the 
executor  or  administrator  is  not  precluded  from  enforcing  it  at 
the  proper  time.^ 

§  300.  The  same  Subject ;  Effect  where  the  Expression  "  As- 
signs," "  Next  of  Kin,"  "  Heirs,"  etc.  is  used.  —  The  effect  is  the 
same  usually  where  the  expression  "  A.  or  his  assigns  "  is  used 
exclusively  or  in  connection  with  a  reference  to  executors  or 
administrators.  For  where  the  scope  of  such  a  contract  favors 
such  intendment,  as  it  usually  does,  the  executor  or  administra- 
tor is  assignee  in  law  and  entitled.  Hence,  if  money  be  paya- 
ble to  "A,  or  his  assigns,"  the  executor  or  administrator  may 
generally  recover  upon  the  promise.^  So,  too,  where  the  agree- 
ment was  to  pay  money  or  deliver  goods  to  "  A.  or  his  assigns  " 
by  a  certain  day  ;  or  to  grant  a  lease  to  "A.  and  his  assigns  " 
before  Christmas.  And  this,  notwithstanding  the  intervening 
death  of  A.  ;  inasmuch  as  his  legal  assignee  is  not  by  such  cir- 
cumstance precluded  from  enforcing  the  right,  unless  it  was 
plainly  personal  to  A.  and  conditioned  upon  his  life.^ 

'  Wms.  Exrs.  789,  884  ;  supra,  §  277.     B.,"  his  executor  or  administrator  may 

^  Wms.  Exrs.  884 ;  §  304,  post,  as  to     sue  for  it.     lb. 
rights  accruing  after  decedent's  death  ;         ^  Wms.   Exrs.    789;  Went.  Off.   Ex. 
Plowd.  286;  2    P.    Wms.    467.     Thus,     215;  Hob.  9 ;   i  Leon.  316. 
where  money  is  expressly  "  payable  to         '•  Plowd.  288  ;   Wms.  Exrs.  S84,  885  ; 

Went.  Off.  Ex.  14th  ed.  215. 


§   30I  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

But  it  is  different  where,  on  the  other  hand,  by  "  assigns  " 
was  evidently  meant  an  assignee  in  fact."  And,  generally, 
where  A.  has,  in  exercise  of  his  right  of  dominion,  assigned  and 
transferred  the  cause  of  action  during  his  life  to  some  third  per- 
son, the  title  has  been  so  diverted  as  not  to  be  transmissible 
legally  to  his  executor  or  administrator. 

So  truly,  indeed,  is  one's  executor  or  administrator  his  most 
appropriate  representative  or  assignee  in  law  upon  his  death,  in 
obligations  not  actually  assigned  by  the  decedent,  nor  plainly 
intended  to  cease  or  devolve  in  title  differently,  that  the  word 
"heirs"  or  "next  of  kin,"  introduced  into  the  language  of  an 
agreement,  will  not  confer  upon  such  parties  the  right  to  per- 
vert assets  to  their  own  use,  nor  to  supersede  or  participate  in 
the  lawful  functions  of  the  personal  representative  whom  the 
law  clothes  with  authority  to  settle  and  wind  up  the  estate.^ 

§  301.  Right  of  Representative  to  distrain  or  sue  for  Rent  in 
Arrears.  —  Where  a  lessee  for  years  underlets  the  land  and  dies, 
his 'personal  representative  may  distrain  at  common  law  for  the 
arrears  of  rent  which  became  due  in  the  lifetime  of  the  deceased  ; 
because  these  arrears  were  never  severed  from  the  reversion, 
but  the  executor  or  administrator  has  the  reversion  and  the 
rent  annexed  thereto,  in  the  same  plight  as  the  deceased  him- 
self had  it.^  And  statute  32  Hen.  VIII.  c.  37,  extended  this 
remedy  to  the  executors  and  administrators  of  persons  seized  of 
various  other  interests  in  land  short  of  an  inheritance,  such  as 
an  interest  for  one's  own  life  or  for  another's  life  ;  ^  and,  more- 
over, to  the  executors  and  administrators  of  tenants  in  fee.' 

'  As  where  the  condition  of  a  bond  Exrs.  787  ;  Carr  t.  Roberts,  5  B.  &  Ad. 

waste  pay  a  certain  sum  to  such  per-  78;  supra,  §  277. 

son  as  the  obhgee  should   by  his  last  ^  i    Roll.     Abr.     672;     Latch.     211; 

will  in  writing  appoint  it  to  be  paid;  Wms.  Exrs.  927. 

and  the  obligee  died  making  no  such  ■'Co.   Lit.   162  a;  Wms.   Exrs.  928- 

appointment  by  his  will.     For  here  the  931;   i    Ld.  Raym.  172;   i   Freem.  392. 

intent   evidently  was  to   pay  to  an  ap-  Mb.     Stat.  3  &  4  Wm.  IV.  c.  42,  ex- 

pointee,  not  to  an  executor.     Hob.  9 ;  tends  the  right  to  distrain  to  a  demise 

Wms.  Exrs.  886.  for  any  term  or  at  will.     Wms.  Exrs. 

'11    Vin.  Abr.    133,   pi.    27;   Wms.  931.     And  see  stat.  4  Geo.  IL  c.  28 ; 

Taylor  Land).  &  Ten.  §  560. 


CHAP.    II.]  COLLECTION    OF    THE    ASSETS.  §   303 

Hence  the  personal  representative  became  permitted  generally 
to  distrain  for  arrears  of  rent  due  the  decedent  in  his  lifetime.' 
But  distress  for  rent  is  a  remedy  now  abolished  in  various 
parts  of  the  United  States.  And  doubtless,  for  arrears  of  rent, 
which,  consistently  with  the  doctrine  of  apportionment,  belongs 
to  the  estate  of  a  decedent,  as  assets,  his  personal  representative 
may  sue,  as  a  living  landlord  might  have  done.^ 

§  302.  Rights  of  Personal  Representative  upon  Conditions  made 
with  the  Deceased. —  In  general,  a  condition  stipulated  with  the 
deceased  may  enure  to  the  benefit  of  the  estate  through  the  per- 
sonal representative.  Thus,  to  quote  the  old  books,  where 
cattle,  plate,  or  other  chattels  were  granted  by  the  testator  upon 
condition  that  if  A.  did  not  pay  such  a  sum  of  money,  or  do  some 
other  act  as  the  testator  appointed,  etc.,  and  this  condition  is  not 
performed  after  the  testator's  death,  now  is  the  chattel  come 
back  to  the  executor,  and  he  may  maintain  an  action  respect- 
ing it.^ 

On  the  other  hand,  a  representative  may  be  charged  with 
chattels  which  he  failed  to  turn  over  to  the  estate  in  accordance 
with  his  own  contract  made  with  his  decedent  in  the  latter's 
lifetime.'' 

§  303.  Right  accruing  to  Personal  Representative  by  Chattel 
Remainder,  etc.  —  A  right  to  sue,  which  never  existed  in  the  tes- 
tator or  intestate,  may  likewise  accrue  to  the  executor  or  ad- 
ministrator by  chattel  remainder.  As  where  (to  cite  the  old 
books  again)  a  lease  is  made  to  B.  for  life,  the  remainder  to  his 
executors  for  years ;  or  where  a  lease  for  years  is  bequeathed 
by  will  to  A.  Although  B.  never  had  the  term  in  it,  nor  the 
right  to  sue  while  he  lived,  yet  the  term  shall  devolve  on  his  ex- 
ecutors, who  may  maintain  an  action  in  respect  of  it. 5 

'As  to  apportionment   of  rent,    see         ^  Went.  Off.  Ex.  14th  ed.  181  ;   Wms. 

supra,  §  216.     And  see  Wright  v.  Wil-  Exrs.  886. 
liams,  5  Cow.  501.  ••  Mere's  Estate,  121  Cal.  609. 

-As  to    ejectment,  see   power   over         ^  Went.   Off.  Ex.  14th   ed.  181,  189; 

real  estate,  post.  Co.  Lit.  54  b  ;  Wms.  Exrs.  697,  885. 


§    304  EXECUTORS    AND    ADMINISTKATORS.  [PART   IV. 

§  304.  Right  accruing  to  Personal  Representative  in  his  Time 
and  after  the  Decedent's  Death. —  Besides  the  instances  just  no- 
ticed, of  rights  accruing  by  condition,  remainder,  etc.,  to  the 
executor  or  administrator,  there  are  others  analogous  where  the 
deceased  himself  could  not  have  sued,  because  of  the  peculiar 
tenor  of  the  contract  or  covenant  in  question  and  the  date  of 
his  death,  and  yet  the  right  of  action  would  accrue  to  the  rep- 
resentative in  his  time.  That  the  right  of  action  did  not  accrue 
to  the  testator  or  intestate  himself,  is  not  fatal  to  the  right  of 
his  representative  ;  but  the  right  itself  being  valuable,  the  rep- 
resentative may  avail  himself  of  it  at  the  proper  time. 

Thus,  as  the  old  books  state,  if  A.  covenants  with  B.  to  make 
him  a  lease  of  certain  land  by  such  a  day,  and  B.  dies  before  the 
day,  and  before  any  lease  made,  if  A.  refuse  to  grant  the  lease, 
when  the  day  arrives,  to  the  executor  of  B.,  the  executor  shall 
have  an  action  as  such  on  the  covenant.  And  where  the  father, 
in  an  early  case  cited  by  the  English  court  of  chancery,  pos- 
sessed of  a  term  for  years  and  renewable  every  seven  }'ears,  as- 
signed this  lease  in  trust  for  himself  for  life,  remainder  in  trust 
for  the  son,  his  executors,  administrators,  and  assigns ;  and  the 
father  covenanted  to  renew  the  lease  every  seven  years  as  long 
as  he  should  live ;  and  the  son  died  and  the  seven  years  passed, 
upon  which  the  executors  of  the  son  brought  a  bill  to  compel  the 
father  to  renew  the  lease  at  his  own  expense ;  the  decree  was 
made  accordingly.'  So  upon  a  covenant  to  grant  a  lease  to  A. 
before  Christmas ;  or  upon  a  contract  to  deliver  a  horse  to  A.  on 
a  given  day  ;  ^  or  upon  an  agreement  to  stand  to  the  award  of 
certain  persons,  whose  award  was  to  pay  unto  A.  by  a  certain 
day ;  notwithstanding  A.  dies  before  the  time  appointed,  the 
promise  confers  a  valuable  right  upon  which  A.'s  executor  or 
administrator  may  recover  as  assets  for  the  benefit  of  the  estate 
and  compel  performance.^ 

"  Husband  v.  Pollard,  cited  2  P.  Wms.  supra,  §  299.     As  to  the  effect  of  the 

467.  word  "assigns,"  see  supra,  §  300. 

^I    Leon.  316;   Plowd.  288 ;  Wentw.  'The     representative    may    sue    as 

Off.   Ex.   215;    Wms.    Exrs.  884,  885.  "owner"    within   the   statute,   for  the 

There  is  no  necessity  for  naming  "A.  negligent  kilHng  or  injuring  of  live  stock 

his  executors  or  administrators,"  etc.,  of  the  estate  by  a  railway.  84  Iowa,  664. 
in    such     contract    or   covenant.      See 


CHAP.   11.]  COLLECTION    OF    THE    ASSETS.  §    305 

§  305.  Rights  of  Personal  Representative  as  to  Pledge,  Collateral 
Security,  etc.  —  It  was  formerly  said  that  where  no  time  was 
limited  for  the  redemption  of  a  pledge,  the  pledgor  had  his  whole 
lifetime  to  redeem  unless  quickened  by  a  notice  m  pais,  or 
through  the  intervention  of  a  court  of  equity.'  But  our  modern 
rule  of  limitations  regards  a  barrier  of  years  rather  than  the  un- 
certain duration  of  one  human  Hfe ;  and  hence  lapse  of  time, 
irrespective  of  life  or  death,  affords  the  true  test ;  subject  to 
which  restriction,  the  right  to  redeem  will  pass  to  the  personal 
representative  of  the  deceased  pledgor.^  The  death  of  the 
pledgee  does  not  impair  the  pledgor's  right  to  redeem,  for  tender 
may  be  made  to  the  executor  or  administrator  of  a  deceased 
pledgee.^ 

If  a  time  be  limited  for  payment  of  a  debt  and  the  redemp- 
tion of  the  pledge  or  collateral  security  given,  and  the  pledgor 
die  before  the  appointed  time,  his  executor  or  administrator  may 
redeem  in  his  stead  at  the  day  and  place  agreed  upon.'' 

A  pledge  of  property  belonging  to  the  estate,  though  it  were 
to  secure  the  person  who  provided  the  funeral,  cannot  avail 
against  the  decedent's  personal  representative  when  made  by 
intermeddlers  in  the  assets  and  without  authority  from  him  ; 
but  should  the  representative  have  sanctioned  or  participated  in 
the  pledge,  he  cannot  so  repudiate  the  transaction  afterwards  as 
to  be  absolved  of  liability.^  The  personal  representative's  pledge 
of  assets  for  his  private  debt  is,  of  course,  a  misappropriation, 
and  such  assets  may  in  general  be  recovered  without  repaying 

'  2    Kent    Com.    582;    Story    Bailm.  to  the  estate;  though  in  law  a  some- 

§§    345~348.    362  ;    i    Bulst.    29  ;    Bac.  what  different  doctrine  appears  to  ha%e 

Abr.  Bailment,  B.  prevailed  where  the  representative  re- 

'  Schoul.  Bailm.  §  250;    Cortelyou  ^'.  deemed  with    his    own   funds.      Wms. 

Lansing,  2  Cain.  200  ;  Perry  z/.  Craig,  Exrs.  1661  ;  Wentw.  Off.  Ex.  186,  187. 
3  Mo.  516;  Jones  v.  Thurmond,  5  Tex.         '  Jones  v.   Logan,  50  Ala.  493.      If 

318.  not  at  the  time  qualified  for  the  otfice, 

^  Schoul.  Bailm.  §  250;  Story  Bailm.  he  is  nevertheless   estopped,   it  would 

§§  345-348.  appear,  by  his  own  wrong,  though  not 

*  Bac.    Abr.     Bailment,    B;    Wentw.  to  the  injury  of  the  estate;  but  proof 

Off.   Ex.   i8i  ;    Wms.    Exrs.    886.      In  of  his  presence  and  passive  assent  does 

equity  the   value   of  the   property,   be-  not,  it   is  held,  sufiticiently  charge  hini. 

yond  the  money  paid  for  it,  shall  belong  lb. 

393 


§    307  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  loan.'  An  executor's  or  administrator's  duty  to  redeem  a 
pledge  follows  the  rule  of  prudence  ;  for  if  the  estate  he  repre- 
sents is  to  be  worse  by  such  redemption,  the  preferable  course 
seems  to  be,  to  let  the  secured  creditor  avail  himself  of  the 
pledge  and  stand  on  the  usual  footing  of  creditors  for  his  bal- 
ance.^ 

§  306.  Collection  of  Debts  iwith  Security  ;  changing  or  rene'w- 
ing  the  Security.  —  Debts  with  mortgage  or  other  security  may 
be  collected  on  maturity  and  the  security  discharged  ;  or,  if  the 
debtor  prove  delinquent,  the  security  may  be  enforced  for  the 
benefit  of  the  estate.  So,  too,  if  the  representative  act  fairly 
and  with  becoming  prudence,  the  security  may  be  renewed  or 
changed  while  the  debt  remains  outstanding ;  but  to  give  up 
good  security  and  leave  the  claim  insufficiently  secured,  is  an 
act  of  imprudence,  and  may  charge  the  representative  person- 
ally.3  Loans  upon  security  are  often  treated  as  permanent  in- 
vestments, and  accordingly  sold  and  transferred  instead  of  being 
called  in.-* 

§307.  Gathering  the  Crop  or  Emblements.  —  Since  growing 
crops  on  the  land  of  the  decedent  are  assets,  the  personal  rep- 
resentative has  a  right  to  enter  and  take  them,  for  he  is  account- 
able therefor.  This  right  of  entry  and  possession  cannot  be  di- 
vested by  any  legal  stratagem  so  as  to  deprive  one's  executor 
or  administrator  of  his  right  to  gather  the  crop ;  and  if  inter- 
rupted in  the  reasonable  exercise  of  his  right  by  any  third  per- 
son, he  may  oppose  him  by  force,  or,  if  forcibly  molested,  may 
have  the  offender  indicted.  5 

'  State  V.  Berning,  74    Mo.  87.     As  *•  See  next  chapter  as  to  investments, 

to  the  rights  of  a  boiia  fide  pledgee  in  etc. 

such  cases,  see  Schoul.  Bailm.  §  219;  c.  '  State  v.  Hogan,  2   Biev.  347.     See 

\,  post.  as  to  procuring  an  order  from  the  pro- 

^  See    payment    of    claims,    §     430;  bate  court  to  sell  or  cultivate  a  crop, 

Ripley  z/.  Sampson,  10  Pick.  373.     And  McCormick    v.   McCormick,    40    Miss. 

see  Eidenmuller's  Estate,  Myrick  (Cal.)  700.     And   see    McDaniel  v.  Johns,  8 

87.  Jones  L.  414. 

'  See  Baldwin  v.  Hatchett,   56   Ala. 
561  ;  Mosman  v.  Bender,  80  Mo.  579. 

394 


CHAP.   II.] 


COLLECTION    OF    THE    ASSETS. 


§    308 


§  308.  Want  of  Diligence  or  Good  Faith  in  collecting  Assets. — 
If  the  executor  or  administrator  fails  to  use  due  care  and  dili- 
gence in  collecting  and  procuring  assets,  considering  the  means 
at  his  disposal,  he  will  be  held  liable  for  their  full  value.  As 
where  he  receives  notes  not  shown  to  be  desperate,  and  makes 
no  effort  to  collect  them.'  Good  faith,  too,  should  always  char- 
acterize the  representative's  dealings  with  the  assets,  in  order 
to  absolve  him  from  a  strict  personal  liability  for  their  value.^ 

Hence,  an  executor  or  administrator  who  has  been  guilty  of 
gross  neghgence  or  wilful  default  in  failing  to  collect  a  debt  due 
the  estate  will  be  personally  charged  with  the  debt,  and  some- 
times with  interest  besides.^  But  he  is  absolved,  on  the  other 
hand,  whenever  he  can  show  that  his  conduct  was  such  as  a 
prudent  man,  in  the  management  of  his  own  business,  would 
have  displayed,  and  that  he  had  made  proper  exertion  to  collect, 
and  had  acted  in  good  faith.'' 


'  Lowson  V.  Copeland,  2  Bro.  C.  C. 
156;  Clack  V.  Holland,  19  Beav.  271  ; 
Gates  V.  Whetstone,  8  S.  C.  244  ;  Hall's 
Estate,  70  Vt.  458.  See  next  chapter 
as  to  the  measure  of  a  representative's 
liability;  and  as  to  whether  "sUght 
diligence "  or  "  ordinary  dihgence " 
should  be  the  standard.  The  English 
doctrine  inclines  to  the  former  test,  and 
the  American  to  the  latter.  Sanderson 
V.  Sanderson,  20  Fla.  292.  Especially 
is  the  representative  liable,  when  other 
circumstances  indicate  a  disposition 
biased  to  the  person  of  the  debtor. 
88  N.  C.  416.  Where  the  executor  or 
administrator  had  good  opportunity  to 
sue  and  attach  property  of  the  debtor, 
is  does  not  excuse  him  that  the  debtor 
was  largely  indebted  to  others.  Mun- 
den  V.  Bailey,  70  Ala.  63.  And  due 
diligence  must  be  used  by  an  ancillary 
administrator  as  to  his  collecting, 
though  there  be  another  appointed  in 
the  place  of  domicile.     88  Ind.  1 10. 

^  Whitney  v.  Peddicord,  63  111.  249. 
See  next  chapter. 

'  Tebbs  V.  Carpenter,  i    Madd.  290 ; 


Wms.  Exrs.  1806;   Schultz  v.  Pulver,  3 
Paige,  182  ;  Brazeale  v.  Brazeale,  9  Ala. 
491  ;    Brandon   v.   Judah,  7   Ind.    545 ; 
Scarborough  v.  Watkins,  9  B.  Mon.  540  ; 
Smhh  V.  Hurd,  8  Sm.  &.  M.  682 ;  Hol- 
comb  V.  Holcomb,  11   N.  J.  Eq.  281 
Charlton's  Estate,  35    Penn.    St.   473 
Southall    V.    Taylor,    14    Gratt.    269 
Oglesby  v.   Howard,  43    Ala.   144;   19 
Fla.  300. 

''  Bryant  v.  Russell,  23  Pick.  546; 
Moore  v.  Beauchamp,  4  B.  Mon.  71  ; 
Glover  v.  Glover,  i  McMull.  Ch.  153; 
Bowen  v.  Montgomery,  49  Ala.  353 ; 
Neff's  Appeal,  57  Penn.  St.  91  ;  Gray?'. 
Lynch,  8  Gill,  403.  The  rule  of  the  te.xt 
applies  with  its  qualification  where  the 
representative  forbears  suing,  takes  se- 
curity, etc.,  and  the  debtor  absconds  or 
proves  insolvent.  See  Holmes  v.  Bridg- 
man,  37  Vt.  28 ;  Keller's  Appeal,  8  Penn. 
St.  288.  Or  subjects  the  estate  to  the 
liability  of  surety  or  endorser,  when 
there  was  a  principal  debtor  to  pursue. 
Tuggle  V.  Gilbert,  i  Duv.  340 ;  Cham- 
bers' Appeal,  II  Penn.  St.  436;  Utley 
V.  Rawhns,  2  Dev.  &   B.  Eq.43S;   Kel- 


395 


v^    3IO  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  309.  Collection  of  interest-bearing  Debts;  Usury,  etc.  —  In- 
terest-bearing debts  clue  the  estate  are  to  be  collected,  upon  the 
usual  observance  of  diligence  and  good  faith,  with  interest  as 
well  as  principal.' 

§  3^0.  What  may  be  taken  in  Payment ;  Private  Arrangements 
with  Debtor,  etc.  —  Debts  to  be  settled  beneficially  are  usually 
to  be  paid  in  money  or  its  equivalent.  But  it  is  held  no  breach 
of  trust  for  the  personal  representative  to  receive  as  money 
that  which,  by  the  law  of  the  land,  is  declared  to  be  lawful  cur- 
rency and  a  legal  tender  in  payment  of  debts  ;  nor,  thus  re- 
ceiving, is  it  obligatory  upon  him  to  account  in  coin  for  such 
assets.^ 

Land  should  not  be  taken  in  payment  of  debts,  if  its  proceeds 
may  be  had  instead  ;  for  a  personal  representative  is  not  legally 
capable  of  dealing  with  such  property  and  transferring  title  in 
a  satisfactory  manner.^  But  receiving  personal  property  of  the 
debtor  or  its  avails  or  the  proceeds  of  his  real  estate,  in  satis- 
faction of  the  debt,  or  taking  security,  real  or  personal,  for  a 

ler's  Appeal,  8  Penn.  St.  288.     It  is  not  the  usury.      Ossipee  ?'.  Gafney,  56  N. 

culpable   negligence   to   omit    .'^uing    a  H.  352. 

debtor  who  is -without  means.  7  Gratt.  ^Jackson  v.  Chase,  98  Mass.  286. 
136,  t6o.  a  delay  to  press  claims  on  There  are  various  cases,  in  the  reports 
an  administrator's  part,  because  a  will  of  our  Southern  States,  somewhat  in 
is  discovered  whose  production  for  pro-  conflict,  which  consider  this  principle 
bate  is  expected,  is  indulgently  treated,  in  connection  with  confederate  money 
^  Hartsfield  v.  Allen,  7  Jones  L.  439.  issued  during  the  conflict  of  1861. 
Undue  delay  causing  a  loss  to  the  estate  See  Glenn  v.  Glenn,  41  Ala.  571  ;  Cope- 
is  inexcusable.  Wilson  V.  Lineburger,  landz'.  McCue,  5  W.  Va.  264;  Lagarde, 
I  88  N.  C.  416;  Anderson  v.  Piercy,  20  Succession  of,  20  La.  Ann.  148;  Shaw 
W.  Va.  282.                                                  [  7:    Coble,   63    N.    C.  377  ;   Hendry  v. 

A  claim   reduced  by   judgment  may  Cline,   29  Ark.  414.      Fraudulently  to 

nevertheless  prove  desperate.     61  Miss,  permit  the  discharge  of  a  debt  in  such 

641.  depreciated  currency  cannot  be  upheld. 

Whether  there  should  be  some  proof  Williams    v.   Skinker,  25     Gratt.    507. 

of  collection  or  negligence  in  order  to  But  ^^««y?rt't' and  prudent  dealing  should 

charge   the  executor  or  administrator,  excuse  one.     Hutchinson  v.  Owen,  59 

see  18  S.  C.  I  ;  56  Vt.  264.  Ala.  326.     Contra,  see  Opie  v.  Castle- 

'  To  charge  the  representative  with  man,  32  Fed.  511. 
receiving  usurious  interest  in  fulfilment  I       ^  Weir  v.  Tate,  4  Ired.  Eq.  264.     He 

of    the    decedent's  contract    with    the  is  chargeable  with  the  price  allowed  by 

debtor,  it  should  be  shown  that  he  ac-  him  for  the  lands  unless  those  entitled 

cepted  the  money  with   knowledge  of  to  the  estate  elect  to  take  it.     lb. 


CHAP.   II.]  COLLECTION    OF    THE    ASSETS.  §    3  I  W? 

future  settlement,  may  be  not  only  prudent  but  highly  advan- 
tageous in  the  interests  of  an  estate  ;  and  the  representative 
who  deals  thus  with  a  failing  debtor,  in  the  exercise  of  ordinary 
care  and  diligence,  will  not  be  chargeable  for  such  of  the  in- 
debtedness as  he  fails  eventually  to  realize.'  To  accept,  how- 
ever, in  satisfaction  of  a  manifestly  good  and  collectible  claim, 
the  assignment  or  transfer  of  property  comparatively  worthless, 
betrays  culpable  negligence  if  not  positive  dishonesty.^ 

A  personal  representative  who  is  himself  indebted  to  a  debtor 
of  the  estate,  may,  if  he  chooses,  accept  a  discharge  of  his  own 
debt  towards  the  payment  due  him  in  his  fiduciary  capacity  ;  but, 
so  doing,  he  makes  himself  answerable  to  the  estate  for  the 
whole  debt  so  settled. ^  If  he  receive  a  note  or  other  security 
in  his  individual  right  for  a  debt  due  the  estate,  he  is  liable  over 
to  the  estate,  but  the  transaction  as  between  himself  and  the 
debtor  remains  valid.'' 

§311.  Liability  where  Property  is  taken  or  Money  collected 
by  Mistake  as  Assets.  —  Where  property  is  taken  or  money  re- 
ceived by  the  representative,  through  mistake,  as  assets,  he 
must  restore  or  refund  to  the  party  rightfully  entitled.  Apply- 
ing the  same  knowingly  in  course  of  administration  does  not  ex- 
cuse him. 5 

§  ^iia.  Effect  of  Payment,  etc.  —  A  dona  fide  payment  even 
to  one  appointed  under  voidable  letters  which  cannot  be  at- 
tacked collaterally  will  discharge  a  debtor. 


.6 


*  Neff's  Appeal,  57  Penn.  St.  91.  ^  Alvord  v.  Marsh,  12  Allen,  603. 

^  Bass  V.  Chambliss,  9  La.  Ann.  376;  •*  Biscoe  v.  Moore,   12  Ark.  77  ;  Ross 

Parham  v.  Stith,  56  Miss.  465  ;  Scott  v.  v.  Cowden,  7  W.  &  S.  376.      The  prac- 

Atchison,  36  Tex.  76.      The  rules  con-  tice  of  selling  claims  against   an  estate 

cerning  application  of  proceeds  in  pay-  to  be  used  as  offsets  against  debts  due 

ment  of  debts  apply  in  favor  of  repre-  the  estate  is  discountenanced  by  statute 

sentatives.     Frith  v.  Lawrence,  i  Paige,  in  some  States.     Johnson  v.  Brown,  25 

434.     The  representative  may  execute  Tex.  120.     See  §  302  ;  121  Cal.  609. 

a  release,  though  he  may  make  himself  '  McCustian  v.  Ramey,  ^t,   Ark.  141. 

liable  for  a  devastavit.     Caldwell  v.  Mc-  j  *  88  N.  C.  384,  492  ;  supra,  §  160. 

Vickar,   12  Ark.  746.  I 

397 


§313  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV, 


CHAPTER  III. 

CARE,  CUSTODY,   AND  MANAGEMENT  OF  THE   ASSETS. 

§  312.  Care,  Custody,  and  Management  of  Assets  an  Important 
Function. —  The  care,  custody,  and  management  of  the  personal 
property  or  personal  assets  belonging  to  the  estate  is  an  impor- 
tant function  of  administration.  The  funds  having  been  gath- 
ered in  for  the  purpose  of  making  disbursements  in  due  order 
to  creditors,  legatees,  and  those  entitled  to  the  surplus,  which 
disbursements  must  be  made  upon  careful  deliberation  in  order 
to  be  made  safely,  it  may  happen  that  a  very  large  fortune  is 
left  in  the  keeping  of  the  personal  representative  for  a  consid- 
erable period  of  time,  much  of  it  to  be  placed  on  deposit  or  kept 
in  securities  capable  of  being  quickly  converted  into  cash.  To 
manage  such  a  fund  prudently  may  involve  the  collection  of 
accruing  dividends,  interest,  and  income,  and  perhaps,  in  instances 
of  necessary  delay,  an  investment  or  re-investment  of  funds,  and 
the  putting  of  money  or  other  personal  property  to  such  tem- 
porary use  as  may  bring  in  a  profit.  Funds  of  the  deceased 
left  invested  as  he  placed  them  require  a  like  prudent  super- 
vision.    A  will,  too,  may  direct  investments  to  be  made. 

§  313.  Executor  or  Administrator  how  far  regarded  as  a  Bailee 
in  Respect  of  Responsibility  ;  Honesty,  etc.  —  There  is  a  certain 
Standard  of  responsibility  by  which  the  personal  representative's 
liability  in  this  connection  .should  be  measured.  Courts  have 
defined  that  standard  in  many  instances  as  in  essence  the  re- 
sponsibility of  a  bailee  ;  of  a  gratuitous  bailee  or  of  a  bailee  for 
recompense,  as  the  case  may  be.  Such  a  test  is  certainly  a  con- 
venient one  ;  and  especially  where  applied  to  what  is  strictly  the 
care  and  custody  of  assets  already  in  the  corporeal  {possession 
of  the  executor  or  administrator.  But  this  fundamental  doctrine 
of  administration  responsibility  extends  to  the  manner  of  pro- 

398 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §    3M 

curing  and  collecting  the  assets,  of  managing  the  available  funds, 
of  making  sales,  of  paying  out,  of  distributing  and  winding  up, 
and,  in  a  word,  of  appropriating  the  decedent's  estate  to  the 
just  purposes  of  administration.  The  underlying  principle, 
therefore,  like  that  apj^licable  to  all  trustees,  is  not,  perhaps, 
coincident  with  the  law  of  bailments  as  commonly  expounded, 
but  rather,  transcending  the  limits  of  that  law,  advances  what 
we  may  call  the  bailment  standard  of  accountability  to  the  do- 
mains of  another  relation,  distinct,  though  in  most  respects 
analogous,  namely,  the  fiduciary  one.' 

Under  all  circumstances  the  fiduciary,  like  any  bailee,  must 
pursue  his  discretion  honestly  and  in  good  faith.^ 

§  3  1 4.  As  to  Care  and  Custody  ;  Responsibility  of  Executor  or 
Administrator  like  that  of  the  Bailee. —  As  for  the  simple  care 
and  custody  of  the  personal  property  reduced  to  his  corporeal 
possession  and  control,  whether  it  be  of  things  literally  corpo- 
real or  of  securities  which  represent  incorporeal  money  rights, 
the  executor  or  administrator  is  certainly  bound  like  a  bailee  in 
point  of  responsibility,  according  to  the  current  of  modern  opin- 
ion. Thus,  if  personal  property  belonging  to  the  estate  be  de- 
stroyed or  captured  by  a  public  enemy,  or  perish,  or  deteriorate 
from  some  internal  defect,  or  through  the  operation  of  natural 
causes,  or  in  general,  because  of  inevitable  accident,  the  execu- 
tor or  administrator  who  has  honestly  exercised  ordinary  care 
and  diligence  in  averting  or  lessening  the  mischief,  escapes  per- 
sonal liability  for  the  loss.  He  is  himself  no  insurer  against  ac- 
cidents,^ though  average  prudence  as  to  certain  kinds  of  property 
might  perhaps  have  required  him  to  keep  the  property  insured 
against  loss  by  fire.-»  But  he  should  use  due  care,  as  otherwise 
his  carelessness  renders  him  liable  for  loss.' 

■  See  Schoul.  Bailments,  §§  1-5.  ^See  Schoul.   Bailm.  §§  13-15;  Croft 

'Even  though  the  will   should  give  v.  Lyndsey,  2  Freem.  i. 

one  power  to  invest,  etc.,  as  the  repre-  ••  Semble,  according  to   earlier  cases, 

sentative  "shall  think  fit,"  this  imports  that  the  personal  representative  is  not 

a  discretion  honestly  exercised.     .Smith  bound  to  insure  or  continue  insurance 

V.  Thompson  (i8q6),  i  Ch.  71.  on  the  decedent's  property.     Bailey  t/. 
'  Tarver  v.  Torrance,  81  Ga.  261  (loss  by  pickpockets). 

399 


§315  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§315.  The  same  Subject ;  Whether  this  Responsibility  is  that 
of  a  Gratuitous  Bailee  or  a  Bailee  with  Recompeuse.  —  But  a  lim- 
itation of  bailment  liability,  like  that  we  have  just  stated,  ap- 
plies equally  in  favor  of  bailees  with  and  bailees  without  recom- 
pense. Yet  bailment  responsibility  differs  by  the  well-known 
rule,  according  as  the  bailment  responsibility  in  question  was 
for  the  bailor's  sole  benefit,  or  for  bailor's  and  bailee's  mutual 
benefit ;  in  the  former  case  "  slight  "  is  the  usual  test  as  to  the 
care  and  diligence  requisite,  while  in  the  latter  there  must  have 
been  at  least  "  ordinary  "  care  and  diligence  exercised.  In  other 
words,  a  bailee  serving  with  recompense  is  bound  legally  to  the 
use  of  a  greater  measure  of  care  and  diligence  than  a  bailee  who 
serves  wholly  without  recompense." 

Now  the  fundamental  English  principle  is,  as  we  shall  show 
hereafter,  that  an  executor  or  administrator  shall  be  reimbursed 
for  his  outlays,  but  shall  have  no  remuneration  for  his  own  time, 
trouble,  and  responsibility  in  settling  the  estate  ;  whereas,  in 
most  of  the  United  States  compensation  is  now  regularly  al- 
lowed him . '  A  corresponding  difference  of  precedents  may  there- 
fore be  expected  in  defining  the  essential  standard  of  bailment 
or  fiduciary  liability  with  relation  to  such  officials.  Indeed,  the 
rule  as  now  set  forth  in  the  English  courts,  both  of  law  and  equity, 
is  that  the  personal  representative  shall  not  be  chargeable  for  a 
loss  of  assets  which  have  come  into  his  possession,  unless  wilful 
default  be  shown  ;  ^  though  the  preferable  legal  statement  would 
be  that  an  executor  or  administrator  stands  in  the  condition  of 
a  gratuitous  bailee,  so  that  "  slight  diligence  "  on  his  part  is 
needful,  but  no  more.-*  Good  faith,  moreover,  or  common  hon- 
esty, is  always  demanded  of  a  bailee  or  fiduciary.  It  is  true 
that   Lord   Ellenborough  once  laid  it  down  that  the  bailment 

Gould,  4  Y.  &  C.  221.     But  prevailing  '  Schoul.  Bailm.  §§  13-15. 

usage  among  prudent  business  men  in  ^ Post,    Part     VII.,    as    to    accounts; 

any  age  should  largely  affect  such  issues.  Wms.  Exrs.  1852. 

.And,  however  it  may  be  as  to  insurance  '  Job  v.  Job,  L.  R.  6  Ch.  D.  562,  per 

of  household  effects,  a  stock  of  goods  Jessel,  M.  R. 

in  a  store  or  warehouse  is  very  com-  ■*  See  Wms.  Exrs.   1807;  Goodfellow 

monly  insured  at  this  day,  as  also  are  v.    Rurchett,    2    Vern.    299 ;     Jones    v. 

buildings  and  improvements  upon  real  Lewis,  2  Yes.  Sen.  240. 

estate. 

400 


CHAP.   111.)  MANAGEMENT    OF    THE    ASSETS.  §    3^6 

theoi)'  did  not  apply  in  common-law  courts,  but  that  an  executor 
might  ihere  bo  held  liable  for  the  loss  of  his  testator's  assets 
when  they  had  once  come  into  his  hands;  and  yet,  supposing 
the  courts  of  common  law  to  be  at  variance  on  this  point,  the 
rule  of  equitN'  must  at  the  present  day  prevail." 

On  the  other  haml,  in  the  courts  of  most  or  all  of  the  I'nitctl 
States,  inasmuch  as  the  executor  or  administrator  is  entitled  to 
compensation  for  his  service,  we  apprehend  that  the  rule  of 
liability  must  be  stated  more  strongly,  and  so  as  to  bind  the  rep- 
resentati\e  to  a  measure  of  care  and  diligence  corresponding  to 
that  of  bailees  for  hire  ;  in  other  words,  so  as  to  require,  besides 
good  faith  on  his  part,  that  degree  of  care  and  diligence  which  men 
ordinarily  prudent  bestow  in  the  management  of  their  own  affairs.- 
And  such  in  truth  is  the  prevalent  common-law  and  equity  rule 
in  this  country,  and  the  doctrine  most  consonant  to  sound  reason. 
Provided,  therefore,  the  personal  representative  be  brought  within 
the  i^rotection  of  such  a  rule,  having  also  acted  Ih^fnr  fic/c-,  he  will 
not  be  held  liable  for  money  of  the  estate  stolen  by  burglars  from 
his  safe,^  or  lost  through  the  insolvency  of  the  bank  where  he 
has  deposited  it.-*  A  court  of  probate  acts  upon  equitable  princi- 
ples in  settling  the  accounts  of  executors  and  administrators,  and 
niay  properly  allow  him  for  losses  thus  excusably  incurred  in 
the  course  of  his  care  and  custod\-  of  the  assets.' 

^  ^l6.  Liability  of  Personal  Representative  in  the  General  Man- 
agement of  Estate.  —  This  liability  of  a  personal  representative 
for  all  consec[uences  resulting  from  the  failure  of  due*"  care  and 

'  Job  z:  Job,  su/>rit,  per  Jessel,  M.  R.  deposited  it  with  a  bank  known  to  be 

-Mikell  V.  Mikell,  5  Rich.  Eq.  2::o;  crippled  in  resource!^  he  would  probably 

Kubultom   V.   Morrow,    24    Ind.     202  ;  have  been  compelled  to  bear  the  loss. 
Whitney   v.    Peddicord,     63    111.    249;         -"TwiUy  !■.  Houser,  7  S.  C.  153.     The 

Twitty  ;■.   Houser,  7  S.  C   153;  Bosie,  deposit  shoiJd  have  been  in  trust.     53 

Estate  of,  2  Ashm.  437.     As  to  an  ad-  Ala.  169. 

minLstiator's  want  of  ordinary  care  and  '^pson  i-.  Badeau,  3  Bradf.  Siir.  13. 
diligence  in  getting  in  a  crop,  see  Cooper  ''  I.e.,  as  the  writer  presumes,  "  slight" 
:.  Williams,  109  Ind.  270;  §226.  according  to  the  English  rule,  and  "or- 
'  Stevens  v.  Gage,  55  N.  H.  175.  dinary  "  according  to  the  .\merican  ;  the 
Had  such  representative  kept  a  large  question  of  a  rightful  compensation  fur- 
sum  of  money  belonging  to  the  estate  nishing  the  basis  of  a  legal  distinction, 
in  the  unlocked  drawer  of  his  desk,  01  .'supra,  §315. 
26                                             401 


§317  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

diligence  or  good  faith,  while  performing  his  trust,  is  traceable 
in  various  other  connections  elsewhere  dwelt  upon  in  this  volume. 
As  in  procuring  the  assets,  taking  possession  of  the  personalty, 
and  realizing  upon  notes  and  other  causes  of  action  ; '  or  in  get- 
ting a  fraudulent  transfer  by  his  decedent  set  aside ;  ^  or  in 
selling,  or  in  transferring  the  assets  absolutely  or  by  way  of 
security  ;  ^  or  in  compromising  claims  whether  against  or  in  favor 
of  the  estate,  adjusting  controversies,  prosecuting  or  defending 
suits,  and  submitting  interests  committed  to  his  discretion  to 
arbitration  ;  '^  or  in  winding  up  the  estate  ;  5  and,  in  general,  upon 
his  accounting  with  the  probate  court  for  the  due  performance 
of  his  official  duties.^  So,  too,  as  concerns  the  conduct  of  a 
successor  with  reference  to  investigating  the  acts  and  conduct 
of  his  predecessor,7  or  in  one's  placing  the  assets  in  other 
hands  and  employing  an  agent. ^  For  this  bailment  doctrine, 
being  founded  in  sound  common  sense,  permits  of  a  wide  range 
of  analogous  application  ;  nor,  indeed,  has  it  been  disregarded  by 
the  legislature  in  framing  statutes  which  affect  the  settlement 
of  the  estates  of  the  dead,  nor  by  courts  of  probate  and  equity, 
whose  duty  it  is  to  take  jurisdiction  of  such  settlements. 

§  3  I  7-    Management  of   the  Estate  ;   Collection  of  Income,  etc. ; 
Responsibility  of  the  Representative.  —  In  general  the  executor 

^  Supra,     §§308,     310;      McCall   v.  getting  an  ancillary  appointment  in  or- 

Peachy,  3  Munf.  (Va.)  288;  Connelly's  der  to  collect  assets  abroad.     Williams 

Appeal,  I  Grant,  366;  Gates  v.   Whet-  zl  Williams,  79  N.  C.  417. 

stone,  8  S.  C.  244;  Stark  v.  Hunton,  3  The  representative  is  chargeable  with 

N.  J.  Eq.  300 ;  Neff' s  Appeal,  57  Penn.  the  value  of  personal  property  belonging 

St.  91.  to  the  estate  and  lost  by  his  negligence, 

'  Danzey  z'.  Smith,  4  Tex.  411  ;  Mc-  although  it  never  came  into  his  posses- 

Lendon  z/.  Woodward,  25  Ga.  252.  sion;  for    diligence  in  pursuing    assets 

^  See    next  chapter ;  Dugan   v.    IIol-  not  in  his  possession  is  required.    Tuttle 

lins,  u  Md.  41  ;  Griswold  v.  Chandler,  v.  Robinson,  2Z  N.  H.  104.     Not,  how- 

5  N.  H.  492.  ever,   certainly,   as  to  assets  of  whose 

^  Woods   V.    Elliott,    49    Miss.     168;  existence    he  was    excusably   ignorant. 

Hoke  V.  Hoke,  12  W.  Va.  427.  Jones  z\  Ward,  10  Verg.  160. 

5  Cooper  t/.  Cooper,  77  Va.  198.  Though   an   illegal   bailment   by  the 

''/'^j'/,  Part  VII.,  as  to  accounts  ;  Kee  executor    or    administrator  cannot    be 

V.  Kee,  2  Gratt.  116.  avoided  by    him,  yet    he    may   recover 

'  See  c.  5, /t?j/ ;  Cock  z'.  Carson,  38  back  the  property  after  the  bailment  has 

Tex.  284.     Or  even,  as  concerns  a  prin-  expired.     English  7'.  McNair,  34  Ala.40. 

cipal    representative,  with  reference  to  '  Davis  r.  Chapman,  83  Va.  67. 

402 


CHAP.  III.]  MANAGEMENT    OF    THE    ASSETS.  §    3 '  7« 

or  administrator  is  required  to  be  faithful,  honest,  and  diligent, 
as  to  the  management  of  assets  in  his  hands  or  subject  to  his 
control.  If  he  retains  funds  of  the  estate  to  meet  the  exigencies 
of  his  office,  and  so  as  to  discharge  statute  allowances,  debts  or 
legacies,  as  they  may  become  payable,  and  ultimately  for  a  dis- 
tribution of  the  surplus  or  payment  of  the  residue  to  the  person 
or  persons  lawfully  entitled  thereto,  it  is  incumbent  on  him  to 
collect  dividends,  interest,  or  income  upon  invested  funds,  not 
lying  idle,  with  the  same  measure  of  care,  diligence,  prudence, 
and  good  faith  as  applies  to  collecting  and  reducing  to  possession 
the  principal  of  the  assets.'  And  as  for  choosing  between  keep- 
ing funds  invested  or  suffering  them  to  lie  idle,  the  same  pru- 
dent and  faithful  regard  for  the  duties  of  his  office  should  afford 
the  criterion.^ 

In  the  general  management  of  the  estate,  our  leading  maxim 
still  applies  that  honesty,  reasonable  ^  care  and  proper  diligence 
are  expected  from  the  personal  representative,  and  ought  ever 
to  be  brought  to  the  fulfilment  of  the  trust ;  but  that  wherever 
these  qualities  have  been  exercised,  the  representative  will  not 
be  held  personally  responsible  for  losses  which  ordinary  pru- 
dence could  not  foresee  and  avoid,  nor  charged  with  that  which 
he  never  did  nor  could  thus  have  realized.'* 

§  'ilja.  As  between  Investing  Cash  or  Using  it  for  Payments, 
Deposits,  etc.  —  All  other  things  equal,  there  can  be  no  better 
use  for  ready  cash  or  funds  on  hand  than  in  settling  current 
demands  upon  the  estate.  And  if  the  executor  or  administra- 
tor, instead  of  doing  this,  places  the  cash  on  deposit  at  interest, 
or  otherwise  invests  the  fund,  he  runs  a  risk  of  culpable  loss. 

'  Dortch   V.   Dortch,   71    N.  C.    224;  matter  of  only  secondary  consequence 

Rayz/.  Doughty,  4  Blackf.  115.     Usury  with  an  executor  or  administrator, 
received  by  the  decedent  or  by  the  rep-         ^ I.e.,  "ordinary,"    according    to    the 

resentative  himself  upon  the  decedent's  American    standard,  and    "slight,"  ac- 

property     must     be     accounted     for.  cording  to  the  English.     Supra,  %y^. 
Proctor  V.  Terrill,  8  B.  Mon.  451.  ■•  Voorhees  v.  Stoothoff,  6  lialst.  145  ; 

^  Hence,  his  office  being  primarily  to  WilUams  v.  Maitland,  i    Ired.  Eq.  92; 

gather  in,  disburse,  and  distribute  with  Webb  z/.  Bellinger,  2  Desau.  482;  Cal- 

reasonable  expedition,  the  keeping  funds  houn's  Estate,  6  Watts,  185. 
outstanding  and  productive  becomes  a 


§   3l8  EXECUTORS    AND    ADMINISTRATORS.  [P ART  IV. 

Especially  is  this  true,  where  he  borrows  or  advances  from  some 
other  source  to  meet  these  current  demands.'  But  a  bank  de- 
posit suitably  distinguished  may  prove  advantageous  for  draw- 
ing checks  against  it  for  current  payments  ;  and,  since  claims 
are  not  always  payable  at  once  in  prudent  administration,  or  es- 
])ccial  delay  may  be  occasioned,  money  not  wanted  for  immedi- 
ate payments  may  well  be  deposited  in  some  bank  of  good 
standing  at  interest  or  otherwise.-  But  where  a  representative 
needlessly  retains  money  of  the  estate  in  his  hands  beyond  the 
time  limited  by  law  for  settling,  he  may  be  held  culpably  liable 
if  he  loses  it.^ 

Trust  companies  are  chartered  in  various  States  at  the  pres- 
ent day  as  legal  depositaries,  and  in  a  legal  depositary  (though 
one  is  not  usually  obliged  to  employ  such  a  concern)  an  execu- 
tor may  deposit  his  trust  fund  instead  of  the  common  deposit 
banks  with  little  peril  of  his  discretion.  Any  savings  bank  or 
other  dejwsitary  may  be  designated  by  local  statute  as  a  legal 
one  for  such  purposes.'*  But  the  representative  must  not  de- 
posit in  his  individual  name  if  he  wishes  to  escape  personal  lia- 
bility for  losses. 5 

^318.  Paying  Assessments;  Discharging  Liens,  etc.,  upon  Per- 
sonal Assets.  —  Taxes  upon  the  personal  estate  of  a  deceased 
person  should  be  duly. discharged  according  to  law  by  the  per- 
sonal representative  ;  not  however,  without  similar  qualifica- 
tions ;  for  if  the  assets  prove  insufficient  for  discharging  claims 


'Guthrie  7-.  Wheeler,  51    Conn.  207.  stolen  without   his  fault  as  bailee.     84 

Executor  held  liable  for    depositing  a  Ala.  489. 

large  amount  in  a  savings  bank  which  ''A  probate  court  is  now  often  empow- 

afterwards    failed,  while  paying    debts  ered  to  order  the  deposit  of  funds  with 

with  his  own  money.     And  as  to  hoard-  a  trust  company,     i  Dam.  302. 

ing  money  instead  of  paying  it  out,  see  ^  See  Williams  v.  Williams,  55  Wis. 

Rogers  v.  Tullos,  51  Miss.  685  ;  §322.  300,  and  numerous  cases  cited.     Some 

-Guthrie  7'.   Wheeler,  supra.     Pend-  cases  certainly  protect  one's  represen- 

ing  a  contest  as  to  the  validity  of  the  tative  character  where  the  form  of  ac- 

will,  for  instance.     lb.     And  see  Jaco-  count  enables  the  identity  of  the  trust 

busz/.  Jacobus,  37  N.  J.  Eq.  17  ;  Wood-  deposit  to  be  traced  and  distinguished, 

ley  7/.  Holley,  in  X.  (.'.  380.  But  here  the  power  of  individual  con- 

^  Hlack    V.     Hurlbut,    73    Wi.s.    126.  trol  was  taken  against  the  administra- 

Aiiter,  if  money  properly  in  hand  was  lor;  he  deposited  in  his  own  individual 

404 


CHAP.    III.]  MANAGEMENT    OF    THE    ASSETS.  §    32O 

having  a  legal  preference,  the  taxes  he  pays  become  eventually 
a  disbursement  from  his  private  means.  Where  shares  of  stock 
owned  by  the  decedent  are  of  market  value,  it  may  be  incum- 
bent upon  the  executor  or  administrator,  in  the  exercise  of  be- 
coming prudence,  to  pay  assessments  thereon  and  redeem  them 
for  the  benefit  of  the  estate,  such  assessments  constituting  a 
lien  on  the  shares."  But  if  the  shares  are  worthless,  and  will 
probably  continue  to  be  so  after  assessments  are  paid,  he  is  not 
justified  in  paying  out  the  assets  for  that  purpose,  nor  in  re- 
deeming the  stock.^ 

The  personal  representative  deals  with  liens  as  he  finds  them 
when  his  own  title  vests  ;  and  such  Hens  he  cannot  disregard. 
But,  as  already  intimated,  he  cannot  in  his  representative  capac- 
ity create  a  lien  on  the  assets  for  a  debt  due  during  the  dece- 
dent's lifetime  so  as  to  impair  the  rights  of  other  creditors.^ 
Nor  x:an  he  bind  an  insolvent  estate  by  his  agreement  in  such  a 
manner  as  to  take  assets  out  of  the  legal  course  of  distribution 
provided  for  by  that  contingency.'* 

§  319-  Personal  Representative's  Vote  upon  Stock.  —  The  as- 
sent of  the  personal  representative,  as  stockholder,  to  corporate 
acts  requiring  the  stockholders'  assent,  may  be  valid,  though  the 
stock  does  not  stand  in  his  name,  and  his  assent  is  given  in  his 
personal  capacity.  5 

§  320.  Putting  Assets  into  a  Salable  Condition,  etc.;  Repairing, 
etc.  —  The  representative  who  finds  a  raw  commodity  on  hand, 
—  tobacco,  for  instance,  —  may  lawfully  put  it  into  a  salable 
condition,  provided  he  act  prudently  and  honestly,  within  the  usual 
rule  ;  ^  and  the  same  may  be  said  of  repairing  damaged  goods, 

name  in  a  bank,  funds  of   the  estate,  ^Ripley  v.  Sampson,    lo   Pick.   373. 

and  on  the  bank's  failure  he  was  held  And  see  Stow's  Estate,  Myrick  (Cal.) 

liable.     And   this   though    he    had    no  97. 

other  funds  in  that  bank,  and  informed  '  Ford  v.   Russell,  i  Freem.  Ch.  42  ; 

the  officers,  when  he  deposited,  that  the  Ga.  Dec.  Part  II.  7  ;  siipra,  §  256. 

fund  was  held  by  him  in  trust.      And  ■*  James's  Appeal,  88  Penn.  St.  55. 

see  §329;  Summers   v.    Reynolds,    95  '  Pike  County  r'.  Rowland,  94   Penn. 

N.  C.  404.  St.  238. 

'  Ripley  J/.  Sampson,  10  Pick.  373;  *  Whitley  z/.  Alexander,  73  N.  C.  444. 
Tuttle  V.  Robinson,  2,2>  ^-  H.  104. 

405 


i^    321  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

or  finishing  up  his  decedent's  jobs,  or  procuring  materials  for 
the  completion  of  contracts  which  were  obligatory  upon  the  es- 
tate, especially  if  remunerative.'  But  the  trust  moneys  should 
not  be  mi.sappropriated  by  the  representative  upoii  any  pretext 
of  repairing  or  protecting  assets  ;  nor  so  as  to  make  good  a  loss 
which  was  occasioned  b)-  his  own  breach  of  trust  ;  nor  so  as 
carelessly  to  waste  the  estate  in  needless  and  un remunerative 
expenditures.^ 

§  321.  Responsibility  of  Personal  Representative  for  Acts  of 
his  own  Agent,  Attorney,  etc.  —  It  is  true  that  persons  interested 
in  an  estate  are  not  bound  to  pursue  assets  into  the  hands  of  the 
representative's  attorney,  but  may  hold  the  representative  di- 
rectly responsible  for  what  the  attorney  obtained. ^  But,  con- 
sistently with  the  probate  and  equity  view  of  the  executor's  or 
administrator's  functions,  the  question  remains  essentially  one 
of  good  faith  and  reasonable  diligence  on  his  part.  Where, 
therefore,  acting  honestly  and  with  ordinary  discretion  and  care, 
the  executor  or  administrator  entrusts  claims  due  the  estate  to 
an  attorney,  he  is  not  chargeable  personally  with  the  loss,  should 
the  attorney  collect  the  money,  apply  it  to  his  own  use,  and  be- 
come insolvent. •♦  But  it  is  culpable  negligence,  within  this  rule, 
to  employ  a  novice  or  one  evidently  unskilful  to  manage  a  trans- 
action of  great  magnitude  and  difficulty  when  the  estate  could 
have  paid  for  a  competent  person. s  Upon  the  same  general 
principle,  the  personal  representative  is  not  responsible  for  a 
debt,  lost  by  mistake  in  pursuing  remedies,  where  he  acts  in  good 

'  See  Oram's  Estate,  9  Phila.  358.  merits,  see   Schoul.    Bailm.  §  19.     The 

"  See  Lacey  v.  Davis,  4  Redf.  (N.  Y.)  scope    of   the  sub-agent's    authority  is 

402.  material.      As    to  thefts,   etc.,  outside 

'  Green  ?>.   Hanberry,  2   Brock.  403.  such  scope,  the  question  is,  whether  the 

A  hired  bailee  responds  in  general  for  bailee   used   ordinary   diligence  in  the 

the  negligent  and  unskillful  work  of  his  choice  and  continuous  employment  of 

own    sub-agents    or    servants   just    as  such  person.     lb.     And  see  as  to  bur- 

though  his  own  want  of  ordinary  dili-  den  of  proof  in  such  a  case.  Brier,  AV, 

gence,  not  theirs,  caused  the  damage.  26  Ch.D.  238. 

Schoul.  Bailm.  in.  '  Wakeman  v.  Hazleton,  3  Barb.  Ch. 

*  Rayner  r.    Pearsall,   3    Johns.    Ch.  148.     And  see  Marshall  f.  Moore,  2  B. 

578  ;  Christy  v.  McBride,  i  Scam.  (111.)  Mon.  69.     See  also  §  296. 
75.      For  the    analogous    rule  of   bail- 

406 


CHAP.    III.]  MANAGEMENT    OF    THE    ASSETS.  §   32 1 

faith  and  under  the  advice  of  competent  counsel."  Nor  for  the 
misconduct  of  an  auctioneer,  not  imprudently  employed  by  him, 
who  sells  assets  and  appropriates  the  proceeds  ;  ^  the  represen- 
tative not  being  remiss  in  taking  steps  for  legal  redress.  But  if 
the  executor  or  administrator  trusts  assets  in  a  careless  manner, 
or  to  those  he  had  no  right  or  no  need  to  employ,  he  is  liable  to 
the  estate  for  the  ill  consequences.^ 

This  appear's  decidedly  the  better  view  of  the  case  as  between 
the  personal  representative  and  those  he  may  employ  in  the 
course  of  administration  ;  though  the  old  authorities  sometimes 
laid  down  the  rule  at  common  law  more  harshly.  It  has  been 
said  in  times  past  that  an  executor  or  administrator  becomes 
responsible  if  his  agent  embezzles  the  funds  of  the  estate. ■♦  But 
even  prudent  men  cannot  hope  to  manage  property  without 
errors  of  judgment,  entailing  occasional  loss ;  and  there  is  neither 
justice  nor  sound  policy  in  holding  the  representative  to  the  ex- 
ceptional liability  of  an  innkeeper  or  common  carrier,  especially 
where  his  service  is  without  remuneration ;  he  stands  rather  as 
any  prudent  owner  of  the  personal  property  might  himself,  were 
he  still  alive  and  managing  his  own  affairs,  so  far  as  blame  is 
concerned. 


'  King  V.    Morrison,    i    Pen.    &  W.  the  estate,  and  make  bad  investments, 

(Penn.)   188  ;    4  Johns.  Ch.  619.     Qii.  the  executor  or  administrator  must  re- 

whether  here,  if  the  attorney  or  coun-  spond  for  the  loss.     Earle  v.  Earle,  93 

sel  was  grossly  at  fault,  legally  liable  in  N.  Y.  104. 

damages,   and  pecuniarily    responsible,         ■*  6    Mod.    93 ;    Toller    Exrs.  426 ;    i 

the  representative,  in   the   exercise  of  Dane  Abr.  590,  art.  16  ;  Doyle  ?'.  Blake, 

reasonable   diligence,    should    attempt,  2   Sch.  &  Lef.   243;  Wms.  Exrs.  1816, 

on  behalf  of  the  estate,  to  pursue  him.  1820.      And   see    Lord    Cottenham    in 

The  bailee  may  sue  his  sub-bailee  for  Clough  v.  Bond,  3  My.  &  Cr.  496.     The 

negligent  performance,  causing  his  dam-  case   in   6    Mod.    93,    however,    raised 

age.     McGill  v.   Monette,   37   Ala.  49.  merely  a  question  of  costs.     "Generally 

And   see    Calhoun's    Estate,  6   Watts,  speaking,"    as   the   old   rule   has   been 

185;    Telford  v.  Barry,   i    Iowa,   591;  stated,  "if  an  executor  appoints  another 

Bacon  v.  Bacon,  5  Ves.  335  ;  Clough  v.  to  receive  the  money  of  his  testator,  and 

Bond,  3  M.  &  Cr.  497.  he  receives  it^  it  is  the  same  thing  as  if 

^  Edmond  v.  Peake,  7  Beav.  239.  the  executor  himself   had  actually  re- 

^  I    Anstr.   107 ;    Ghost  v.  Waller,  9  ceived   it,    and  will   be    assets   in   his 

Beav.  497;  Matthews  v.  Brise,  6  Beav.  hands;    and,    consequently,    appointing 

239 ;    McCloskey   v.    Gleason,    56    Vt.  another  to  receive,  who  will  not  repay, 

264.     Where  some  near  relative  or  per-  is  a  devastavit."     Wms.  Exrs.  18 17. 
sonal  favorite  is  permitted  to  manage         Stat.  22  &  23  Vict.  c.  35,  §  28,  con- 

407 


§    322  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 

§322.  Duty  as  to  investing  Assets  or  placing  the  Funds  on  In- 
terest.—  If,  in  pursuance  of  his  trust,  considerable  sums  of  money 
must  necessarily  lie  idle  for  some  time,  —  as  where,  in  particu- 
lar, searching  out  the  persons  entitled  to  the  surplus  is  perceived 
to  involve  much  delay,  —  the  personal  representative  is  not  only 
permitted,  but  encouraged,  according  to  the  usual  rule,  to  per- 
mit quick  assets  which  are  productive  to  stand  for  a  time  uncol- 
lected. 

In  most  American  States,  too,  the  executor  or  administrator 
is,  by  direct  or  indirect  intendment  of  the  law,  allowed  to  put 
the  money  where  it  may  draw  interest,  and  even  to  invest  funds 
in  interest-bearing  securities."  But  the  rule  of  ordinary  pru- 
dence and  diligence,  as  well  as  good  faith,  is  still  exacted  under 
such  circumstances  ;  and  this,  moreover,  with  special  considera- 
tion, both  to  the  legislative  policy  of  the  State  or  country,  as 
concerns  investments  by  an  executor  or  administrator,  and  the 
time  and  mode  of  settling  the  estate.  For,  unlike  testamentary 
trustees,  the  primary  duty  of  an  executor  or  administrator  is  to 
settle  or  wind  up  an  estate ;  and  accordingly  to  reduce  the  assets 
to  cash  or  readily  convertible  personalty,  and  to  pay  over  or 
transfer  it  to  others  in  pursuance  of  the  peculiar  trust  reposed 
in  him.  When  the  executor  or  administrator  has  money  of  the 
estate  in  his  hands,  and  there  are  no  reasons  why  he  should  re- 
tain it,  and  he  has  full  opportunity  to  pay  it  out  to  the  persons 
entitled,  he  has  no  right  to  retain  it  longer  than  the  responsibil- 
ities of  his  trust  make  it  prudent  and  necessary,  on  any  pretext 
that  he  has  loaned  it  out  for  the  sake  of  interest.^ 

Any  savings  or  accumulations  out  of  the  estate,  together  with 
interest,  dividends,  and  income,  become  assets  in  the  hands  of 
the  personal  representative,  to  be  divided  and  paid  over  in  the 
same  manner  as  the  principal  fund.^ 

Under  the  statutes  of  some  States,  funds  collected  by  a  fidu- 

firms  the  general  rule  indicated  by  the  were  as  stated  above  in  this  note.     See, 

English  equity  decisions;   so  that,  for  further,  Lyonz/.  Lyon,  i  Tenn.  Ch.  225. 

defaults  of  another  employed  by  him,  '  Moore  v.  Felkel,  7  Fla.  44 ;  Dortch 

the  personal  representative  shall  only  be  v.  Dortch,  71  N.  C.  224. 

charged  for  his  own  "wilful  default."  -Wood   v.    Myrick,    17    Minn.   408; 

Wms.  Exrs.    1828.     This  changes  the  Dortch  z/.  Dortch,  71  N.  C.  224. 

old  law,  of  course,  if  the  law  in  truth  ^  Wingatez'.  Pool,  25  111.  118;  §  317a. 

408 


CHAP.    III.]  MANAGEMENT    OF    THE    ASSETS.  §    323 

ciary  are  required  to  be  deposited  with  particular  banks  or  after 
a  particular  manner."  Such  legislative  directions  should  be 
strictly  heeded.  And  the  executor  or  administrator  who,  in 
connection  with  the  deposit,  enters  into  other  transactions  with 
the  banker  which  deviate  from  the  prescribed  line  of  his  duty, 
renders  himself  personally  liable.^  But,  in  general,  the  rule  of 
probate  and  equity  is,  that  where  the  deposit  of  funds  belonging 
10  the  estate  was  made  and  kept  from  necessity,  or  conformably 
to  common  and  reasonable  usage,  and  without  wilful  default,  the 
personal  representative  shall  not  be  chargeable  with  a  loss.^ 
We  assume,  of  course,  that  the  trust  fund  was  kept  as  distinct 
from  his  own  bank  account,  and  that  the  bailment  standard  of 
care  and  diligence  was  consistently  maintained."* 

§  323.    Investments,  how   to    be    made,  etc.;   Rule   of   Liability. 

—  The  doctrine  of  diligence  and  good  faith  may  be  followed 
into  the  subject  of  an  executor's  or  administrator's  investments. 
If  such  an  official  is  to  invest  funds  at  all  he  should  have  a 
reasonable  time  in  which  to  do  so.5  As  to  the  precautions  to 
be  taken  and  the  extent  to  which  the  representative  may  lend 
with  reference  to  the  value  of  property  for  investment,  where 
he  loans  upon  the  security  of  real  estate  mortgages,  there  are 
numerous  decisions  ;  ^  and  usually  only  what  are  called  first- 
class  mortgages,  or  mortgages  whose  security  is  of  value  con- 
siderably larger  than  the  amount  of  the  loan,  should  be  selected. 
In  English  practice,  a  trustee  or  executor,  after  a  decree  to 
account,  is  not  permitted  to  lay   out  money  on  mortgage  or 

'  Livermore  v.  Wortman,  25  Hun,-  ■•  See  English  stat.  22  &  23  Vict.  c.  35, 
341  ;  Pasquier,  Succession  of,  11  La.  §  31,  cited  Wms.  Exrs.  1828,  which  con- 
Ann.  279;  Reed  v.  Crocker,  12  La.  firms  as  the  true  criterion  of  HabiUty, 
Ann.  445;  Shipley,  ^x/(z;-^^,  4  Md.  493.  the   executor's  or  administrator's  own 

MVms.   Exrs.    1818;  Darke  v.  Mar-  "wilful  default."     But  as  to  the  Amer- 

lyn,  I  Beav.  525;  Challen  z'.  Shippam,  ican  rule,  see  supra,  §  315. 

4  Hare,  555.  5  See  78  Va.  665. 

'  Churchill   v.    Hobson,    i    P.   Wms.  *  Brown  v.   Litton,  i    P.  Wms.   141  ; 

243 ;  Castle  v.  Wariand,  32  Beav.  660  ;  Stickney  v.  Sewell,  i  M.  &  Cr.  8  ;  Ingle 

Johnson   v.    Newton,     11     Hare,    160;  v.   Partridge,  34   Beav.  411;  Bogart  f. 

Wms.   Exrs.    181 8;    Nor^vood  v.   Har-  Van    Velsor,  4  Edw.   Ch.   718;    Wms. 

ness,  98  Ind.  134;  §3i7<i.     See  Welch's  Exrs.  1808. 
Estate,  1 10  Cal.  605. 

409 


§    3^4  EXECUTORS    AND    ADM  IXISTRATORS.  [PART  IV. 

Other  security,  without  the  leave  of  the  court.'  And  while  the 
American  rule  generally  leaves  more  to  the  personal  representa- 
tive's own  discretion,  it  certainly  discourages  long  loans  upon 
securities  not  easily  convertible,  of  moneys  which  may  be 
required  for  the  immediate  purposes  of  administration  ;  looking 
rather  to  temporary  loans  and  investments,  and  to  the  tem- 
porary continuance  of  safe  securities  originally  received  by  him 
as  assets  of  the  estate.  But  should  a  mortgage  security,  pru- 
dently and  properly  taken,  turn  out  bad,  the  fiduciary's  good 
faith  and  observance  of  reasonable  care  and  diligence  shall 
shield  him.^  In  English  practice,  such  securities  are  highly 
favored  for  trust  investments  of  a  permanent  character. ^ 

An  investment  of  personal  assets  in  real  estate,  being  tech- 
nically a  conversion,  is  not  proper  on  the  representative's  part. 
But  where  it  becomes  necessary  to  save  the  estate  from  loss, 
it  is  right  and  even  obligatory  for  the  executor  or  administrator 
to  purchase  or  take  possession  of  land  on  the  foreclosure  of 
a  mortgage  belonging  to  the  estate,  and  hold  the  title  for  the 
benefit  of  the  estate.  In  such  case  the  land  may  be  treated  as 
personal  property  ;  ■*  and  if  taken  without  breach  of  trust  by 
the  representative,  the  land  may  be  turned  over  in  lieu  of  the 
fund  on  a  settlement  of  the  estate.^ 

§  324.  The  Subject  continued. —  Where,  as  lU  some  Ameri- 
can States,  no  particular  restrictions  are  imposed  by  law  upon 
the  fiduciary,  as  to  the  kinds  of  securities  in  which  the  trust 
funds  shall  be  placed,  or  the  mode  of  making  investments ;  the 
general  rule  of  liability  still  applies  which  we  have  been  dis- 
cussing, viz.  :  that  the  fiduciary  shall  act  with  honor  and  shall 
exercise  a  sound  and  reasonable  discretion,  like  men  of  ordinary 
prudence  in  conducting  such  affairs.^  Investment  in  public  (if 
not  real)  securities,  is  the  usual  English  requirement  as  to  trust 

'  Wms.  Exrs.  1809.  of  the  United  Kingdom.     Wms.  Exrs. 

*  Brown  v.   Litton,   i    P.   Wms.   141.  181 1. 

Cf.  Norbury  27.  Norbury,  4  Madd.  191  ;  *  Valentine  v.   Belden,  20  Hun,  537. 

Wilson  V.  Staats,  t^i  N.  J.  Eq.  524.  '  Perrine  v.  Vreeland,  33  N.  J.  Eq. 

^  See  Wms.  Exrs.   1810.     Stat.  22  &  102,596;  Richardson  7/.  McLemore,  60 

23  Vict.  c.   35,  §32,  sanctions   trust  in-  Miss.  315.     See  Part  VI. 

vestments  in  real  securities  in  any  part  <>  Kinmonth  v.  Brigham,  5  Allen,  277, 

410 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §    324 

funds  ; '  and  the  personal  representative  should,  in  that  country, 
invest  his  unemployed  money  in  government  loans  of  the  de- 
scription authorized  by  the  court  of  chancery.^  And  although  a 
fair  and  reasonable  discretion  as  to  investing  upon  private  per- 
sonal security  appears  in  some  earlier  instances  to  have  been 
approved,  the  present  rule  of  the  English  courts  of  equity 
clearly  establishes  that  an  executor  who  lends  upon  the  bond, 
promissory  note,  or  other  personal  security  of  a  private  party, 
commits  a  breach  of  trust,  and  shall  be  personally  answerable 
for  the  fund.^ 

But  these  doctrines  have  not  been  adopted  in  Massachusetts  ;  "^ 
nor  generally  in  the  United  States  ;  and  even  were  our  national 
public  securities  available  in  this  country,  as  they  seldom  have 
been  in  the  English  sense,  State  securities  of  the  particular  ju- 
risdiction might  not  be  thought  much  less  desirable.  The  sub- 
ject is,  to  a  large  extent,  controlled  in  this  country  by  local  stat- 
utes which  vary  considerably  in  the  range  of  selection  permitted 
to  the  fiduciary.  But  the  policy  so  strongly  inculcated  in  Brit- 
ish jurisprudence,  of  using  accumulated  wealth,  transmitted  from 
the  dead  to  the  living,  to  strengthen  the  hands  of  government, 
by  causing  its  investment  in  the  national  soil  and  the  public 
debt,  finds  less  favor  in  America.  Here  individual  fortunes,  so 
far  as  they  remain  undispersed  and  are  left  to  accumulate,  aid 
rather  in  stimulating  private  enterprises,  near  and  remote,  and 
in  reclaiming  the  wilderness,  and  peopling  and  developing  new 

by  Hoar,  J. ;  Harvard  College  z'.  Amory,  descriptions  of    British    securities    are 

9  Pick.  446.  sometimes    sanctioned.      6   Beav.   239. 

'  Howe  V.  Lord  Dartmouth,  7   Ves.  And  see  stats.  22  &  23  Vict.  c.  35,  §  32  ; 

137  a.     For  the  modern  rule  as  to  in-  23  &  24  Vict.  c.  38,  §   12,  under  whose 

vestment  of  a  fund  so  bequeathed  that  operation  the  choice  of  investment  is 

the  income  shall  be  paid  to  a  particular  extended  to  a  choice  not  only  of  real 

class  for  life,  and  then  the  principal  to  securities  in    any  part    of   the    United 

others,  see  Part  V.,  legacies, /<7j/ ;  Sar-  Kingdom,  but    also    of   national    bank 

gent  V.  Sargent,  103  Mass.  297  ;  Brown  stock  and  East  India  stock. 

V.   Gellatly,   L.   R.  2    Ch.   751;    Wms.  ^  cf^  Webster  z/.  Spencer,  3  B.  &  Aid. 

Exrs.  1391,  and  Perkins's  note.  360,  with  Gil.  Eq.  10;   i   Eden,  149  «.  ; 

^  That  is  to  say,  the  three  per  cent.  Walker  v.  Symonds,  3  Swanst.  63 ;  Ba- 

consols.     Holland  v.  Hughes,  16  Ves.  con  v.  Clark,  3  M.  &  Cr.  294;  Wms. 

114;  Wms.  Exrs.  1810,  1811.     Though  Exrs.  1809. 

for  a  purely  temporary  investment  other  ■*  Lovell  v.  Minot,  20  Pick.  119. 

411 


§  325 


EXECUTORS    AND    ADMINISTRATORS. 


[part   IV. 


States ;  while  the  nation  itself  makes  no  general  directions  for 
investment  and  cannot  interfere." 


§325.  Liability  for  placing  or  leaving  Assets  in  Trade,  Specula- 
tion, etc.  —  An  administrator  is  not  justified  in  placing  or  leaving 
assets  in  trade,  for  this  is  a  hazardous  use  to  permit  of  trust 


■  Concerning  investments  in  "  Con- 
federate securities  "  during  the  South- 
ern conflict  of  1861,  various  recent  deci- 
sions are  found.  The  main  question  is 
not  easily  separable  from  perple.xing  is- 
sues of  lawful  or  unlawful  government ; 
but  in  general  the  valid  act  of  a  State 
legislature  authorizing  investments  to 
be  made  in  specified  securities  should 
shield  the  personal  representative  who, 
in  good  faith  and  not  carelessly,  invests 
accordingly.  See  Trotter  v.  Trotter,  40 
Miss.  704;  Manning  v.  Manning,  12 
Rich.  Eq.  410;  Leake  v.  Leake,  75  Va. 
792.  But  in  some  States  such  invest- 
ments must  doubtless  have  been  utterly 
illegal.  Copeland  v.  McCue,  5  W.  Va. 
264  ;  Sharpe  v.  Rockwood,  78  Va.  24. 
State  securities  have  not  in  all  instances 
been  a  judicious  investment  for  trust 
moneys.  Perry  v.  Smout,  23  Gratt.  241. 
See  17  Wall.  570. 

Investments  made  by  an  executor 
voluntarily,  which  on  application  of  the 
legatees  the  court  would  have  compelled 
him  to  make,  will  be  protected.  Bod- 
ley  V.  McKenney,  9  Sm.  &  M.  339. 
When  personal  property  is  given  for 
life  generally,  and  the  trust  of  investing 
appears  to  have  been  confided  to  the 
executor  rather  than  a  trustee,  an  in- 
vestment should  be  made  so  as  to  se- 
cure interest  or  income  to  the  life  lega- 
tee. Evans  v.  Inglehart,  6  Cxill  &  J.  71  ; 
legacies, /<7j/ ;  Jones  v.  Stites,  19  N.  J. 
Eq.  324;  Chisholm  v.  Lee,  53  Ga.  611  ; 
Calkins  v.  Calkins,  i  Redf.  337.  And 
see,  as  to  perishable  property.  Woods  v. 
Sullivan,  i  Swan,  507.  In  some  States 
the  personal  representative  is  bound  to 
invest  moneys  left  in  his  hands,  after 


settling  his  accounts,  within  a  specified 
period,  usually  six  months.  Frey  v. 
Frey,  14  N.  J.  L.  71.  Investments  left 
by  the  decedent  in  a  particular  kind  of 
security  might,  if  prudent,  be  fairly  re- 
invested in  the  same  or  a  similar  se- 
curity. Brown  v.  Campbell,  Hopk.  233 ; 
Hogan  V.  DePeyster,  20  Barb.  100. 

Trust  investments  in  corporate  or  in- 
dividual bonds  and  notes  are  quite  gen- 
erally sanctioned  in  the  several  States ; 
but  the  classes  of  permissible  securities 
are  often  clearly  specified  by  statute; 
and  investment  in  the  unsecured  bond 
or  note  of  an  individual  is  not  usually 
allowable  as  prudent.  Lacy  v.  Stamper, 
27  Gratt.  42.  Municipal  bonds  and  bank 
stock  cannot  in  some  States  be  taken 
without  the  court's  permission.  Tucker 
V.  Tucker,  33  N.  J.  Eq.  235.  See,  fur- 
ther, 2  Redf.  (N.  Y.)  333,  349,  421,  465  ; 
35  N.  J.  Eq.  134,  467.  As  to  loans  on 
personal  security,  see  §  329 ;  Lefever  v. 
Hasbrouck,  2  Dem.  567.  Money  of  the 
estate  cannot  be  used  by  the  represen- 
tative to  protect  stock  which  he  had  no 
right  to  purchase,  nor  in  subscribing  for 
additional  stock  under  a  privilege. 
Lacey  v.  Davis,  4  Redf.  402.  Prudence 
seems  to  require  that  depreciated  cur- 
rency should  be  used  in  paying  debts 
owed,  as  well  as  in  receiving  payment 
of  debts  due  the  estate.  It  may  be  de- 
posited, but  should  not  be  hoarded. 
Rogers  v.  TuUos,  51  Miss.  685. 

In  Missouri,  an  executor  or  adminis- 
trator who  lends  or  invests  funds  of  the 
estate  without  an  order  from  the  pro- 
bate court,  does  so  at  his  own  risk. 
Garesche  v.  Priest,  78  Mo.  126. 


412 


CHAP.    III.]  MANAGEMENT    OF    THE    ASSETS.  §    325 

moneys  ;  besides  which,  trading  hes  outside  the  proper  scope  of 
administration  functions.  Under  circumstances  not  clearly  im- 
prudent, however,  an  executor  may  pursue  an  authority  which 
was  plainly  conferred  upon  him  by  the  will  in  this  respect  ; 
though  less  as  an  executor,  perhaps,  than  as  one  specially  hon- 
ored or  burdened  by  his  testator's  personal  confidence.  Chan- 
cery protects  the  executor  who  can  show  his  testator's  express 
sanction,  but  scarcely  beyond  this,  and  chiefly  so  as  to  keep  the 
hazardous  investment  under  its  prudent  direction.  To  employ 
trust  funds  in  trade  on  the  representative's  own  responsibility 
has  always  been  treated  as  essentially  a  breach  of  trust ;  and 
the  courts  have  resisted  much  pressure  to  relax  the  rule.  And 
the  executor  or  administrator  so  employing  funds  of  the  estate 
has  the  disadvantage  of  incurring  all  the  risks  while  he  must 
account  for  all  the  profits." 

For  the  loss  of  assets  placed  or  left  by  him  in  trade,  the  rep- 
resentative may,  therefore,  be  charged,  as  for  his  imprudence.^ 
And  if  he  carries  on  the  business  with  surviving  partners  of  the 
deceased,  he  may  incur  an  individual  liability  for  the  partnership 
debts. 3  But  if  the  trade  prove  advantageous,  the  parties  inter- 
ested in  the  estate  are  not  debarred  from  claiming  the  profits  of 
the  investment  as  theirs.^  Debts  incurred  by  the  representative 
in  the  prosecution  of  the  unauthorized  trade  with  personalty 
cannot  be  charged  against  the  general  assets,  real  and  personal, 
notwithstanding  an  honest  intention  on  the  fiduciary's  part  to 
benefit  the  family  of  the  decedent  by  carrying  it  on. 5 

'  Wms.  Exrs.  1792,  1793;  Barker  v.  decedent  belonged,  employing  his  own 
Barker,  i  T.  R.  295  ;  Garland,  Ex  parte,  capital,  and  taking  no  undue  advantage 
10  Ves.  129;  Perry  Trusts,  §429;  Bur-  out  of  the  assets,  see  Simpson  v.  Chap- 
well  V.  Mandeville,  2  How.  560;  Pitkin  man,  5  De  G.  M.  &  G.  154.  Where  a 
V.  Pitkin,  7  Conn.  307;  Thompson  v.  surviving  partner  is  also  executor  of  the 
Brown,  4  Johns.  Ch.  619;  Lucht  v.  estate  of  his  deceased  co-partner,  and 
Behrens,  28  Ohio  St.  231  ;  Stedman  v.  "he  collects  partnership  assets  which  are 
Fiedler,  20  N.  Y.  437.  not  needed  to  pay  partnership  debts,  he 

^Thompson  v.  Brown,  4   Johns.  Ch.  will  be  presumed  to  hold  such  assets  as 

619,  and  other  cases,  supra.  executor.     Caskie  v.  Harrison,  76  Va. 

^Alsop    V.    Mather,    8   Conn.    584;  85. 

Muntz  V.    Brown,    11    La.    Ann.   472;  ''Robinett's  Appeal,  36  Penn.  St.  174. 

Stedman  v.  Fiedler,  20  N.  Y.  437.     As  '  Lucht  v.  Behrens,  23  Ohio  St.  231  ,■ 

to  permitting  a  representative  to  enter  Merritt  v.  Merritt,  60  Mo.  150. 
bona  fide  into  the  concern  to  which  the 


§   3^5^  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

But  as  to  withdrawing  assets  from  a  partnership,  or  closing 
out  a  business  in  which  the  decedent  was  engaged,  a  wider  dis- 
cretion must  occasionally  be  conceded  to  the  personal  representa- 
tive ;  for  this  duty  must  be  performed  with  a  prudent  regard  to 
time,  opportunity,  and  other  circumstances.  An  administrator 
is  not  necessarily  wanting  in  due  care,  so  as  to  be  responsible 
personally,  if  he  suffer  the  surviving  partner  to  remain  in  pos- 
session of,  and  sell  out,  the  joint  stock  in  the  usual  course  of 
trade  ; '  and  to  thus  sell  out  a  decedent's  stock  in  trade  may  be 
for  the  highest  interests  of  the  estate,  provided  due  care  be  exer- 
cised in  the  choice  of  agents.  And  where  it  appears,  on  finally 
closing  the  partnership  affairs,  that  the  firm  is  insolvent,  the  fact 
that  it  must  also  have  been  insolvent  at  the  decedent's  death, 
and  that  the  estate  has  actually  profited  by  the  representative's 
delay  in  withdrawing  the  decedent's  interest  from  the  firm,  may 
exonerate  the  representative.^ 

These  principles  apply  to  speculative  investments  of  all  kinds, 
with  the  assets.  The  personal  representative  incurs  all  the  risks 
and  is  entitled  to  none  of  the  profits  resulting  from  such  trans- 
actions committed  in  breach  of  trust.  But  if  assets  came  to 
him  thus  invested  by  the  decedent,  it  is  a  question  of  prudence 
when  and  how  he  shall  withdraw  the  fund  ;  and  though  he  is 
not  justified  in  continuing  the  speculation,  and  involving  the 
estate  more  deeply,  a  reasonable  breadth  of  honest  discretion 
.should  be  allowed  him,  as  to  closing  the  transaction. ^ 

§  325^.  Closing  out  Decedent's  Business,  etc.  —  Good  discretion 
may  require  some  latitude  in  closing  out  a  decedent's  business. 
Thus,  in  tlic  case  of  a  school  teacher  who  died  during  the  school 
year,  and  left  contracts  outstanding  with  teachers  and  others,  hav- 
ing also  received  some  of  the  tuition  fees  in  advance,  an  executor 
who  in  good  faith  carried  out  the  existing  arrangements  for  some 

'Thompson  v.   Brown,  4   Johns.  Ch.  adventured  or  lost  in  the  business.     And 

619.     See  also    Merritt  v.   Merritt,   60  .see  next  chapter  as  to  selling  out  the 

Mo.  150.  interest  in  a  firm. 

^Stern's  Appeal,  95   Penn.    St.   504.         ^  See  Perry  Trusts,  §  454  ;  Tompkins 

Here  it  was  shown  that  none  of  the  in-  v.  Tompkins,  18  S.  C.  i. 
dividual  assets  of  the  estate  had  been 

414 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §   326 

months,  and  then  sold  out  the  good-will  for  a  fair  sum,  had  his 
accounts  approved  and  ratified  by  the  court." 

§  326.    Carrying  on  a  Trade  with  Assets;   Liability,  etc.  —  The 

liability  of  a  deceased  copartner,  as  well  as  his  interest  in  the 
profits  of  the  concern,  may,  by  the  copartnership  contract,  be 
continued  beyond  his  death.-  Without  such  stipulation,  how- 
ever, death  would  dissolve  the  firm,  even  where  the  copartner- 
ship was  expressed  to  be  for  a  term  of  years.^  With  such  a 
contract  the  effect  must  be  naturally  to  bind  the  estate  of  the 
deceased  partner,  in  the  hands  of  his  executors  or  administra- 
tors, without  compelling  such  representatives  to  become  partners 
personally.'*  Where  there  are  no  valid  provisions  by  will  or 
contract  for  further  continuing  a  partnership,  either  the  surviv- 
ing partner  or  partners,  or  else  the  legal  representative,  should 
see  that  the  business  is  duly  wound  up  and  adjusted. ' 

The  active  assent  and  participation  of  the  representatives  in 
the  business  appears,  however,  to  subject  them  to  the  usual  in- 
dividual responsibilities  of  representatives  who  make  contracts 
after  the  decedent's  death  with  reference  to  the  estate  ;  the  im- 
mediate effect  being,  like  that  of  carrying  on  a  trade,  that  they 
have  a  lien  on  assets  for  their  indemnity  if  they  had  power  to 
embark  the  estate  in  trade,  but  otherwise  no  lien.^  WTiere, 
therefore,  the  business  of  the  decedent  is  carried  on  by  executors 
under  a  will,  or  in  any  case,  by  representatives  duly  empowered,^ 
and  the  case  is  not  merely  one  of  leaving  passively  the  dece- 
dent's partnership  interest  in  a  concern,  unadjusted  with  the 
survivor,  the  representatives  incur  a  personal  liability  for  the  debts 
thereby  contracted.  They  are  not  absolved  from  accounting  for 
the  property.     But  they  have  a  right  in  equity  to  indemnify 

"  Gilman  v.  Wilber,  i  Dem.  547.  *  Laughlin   v.   Lorenz,  48    Penn.    St. 

^But  not  so  as  to  contravene  the  rule  275  ;  Lucht  v.  Behren.s,  23  Ohio  St.  231 ; 

against      perpetuities.      88     Me.     131;  Gratz  z/.  Bayard,  11  S.  &  R.  41. 

Schoul.  Wills,  §  21.  '  As  in  Laughlin  v.  Lorenz,  48  Penn. 

^Scholefield   v.  Eichelberger,  7   Pet.  St.  275,  where  a  new  firm  composed  of 

594,  per  Mr.  Justice  Johnson.  the  personal  representatives  of  the  de- 

*  Downs  V.  Collins,  6  Hare,  418.  cedent   and  the  surviving  partner  was 

'Hamlin  v.  Mansfield,  88  Me.  131.  created.  And  see  Frey  z/.  Eisenhardt, 
As  to  representative  of  the  last  surviving  1 16  Mich.  160,  where  the  interested  par- 
partner,  see  153  111.  54.  ties  assented 


^3^6  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

themselves  for  the  payment  of  such  debts  out  of  the  property 
lawfully  embarked  in  the  trade."  Out  of  this  right  springs  an 
equitable  right  of  the  trade  creditors  to  resort  to  such  fund  for 
payment,  if  their  remedy  against  the  representative  be  unavail- 
ing.- And  where  a  new  firm  is  rightfully  created,  into  which 
the  personal  representatives  of  the  old  firm  enter,  the  creditors 
of  the  new  firm  are  clothed  with  the  equities  of  that  firm  against 
the  estate  of  the  decedent  arising  out  of  the  payment  by  the  new 
firm  of  the  debts  of  the  old.^ 

Where,  on  the  contrary,  the  executor  or  administrator  carries 
on  a  trade  without  any  authority  to  do  so,  and  the  business  proves 
disastrous,  this  will  not  of  right  involve  the  decedent's  estate  for 
the  debts  ;  but  such  assets  as  may  be  shown  to  have  been  wasted 
in  the  trade,  those  interested  in  the  estate  have  the  right  to 
claim.  The  difiiculties  are  practical  ones,  arising  out  of  the 
representative's  own  insolvency,  and  the  difficulty  of  tracing  as- 
sets into  the  business.^  Acts  of  the  representative  ultra  vires, 
moreover,  or  in  excess  of  his  express  power  to  trade,  do  not  give 
those  dealing  with  him  an  equity  against  the  trade  assets,  as  the 
latest  authorities  indicate.^  A  will  may  direct  one's  executors 
to  carry  on  trade  after  his  death,  cither  with  his  general  assets 
or  by  designating  a  specific  fund  to  be  severed  from  the  general 
bulk  of  his  estate  for  that  purpose ;  the  latter  intention  is  to  be 
preferred,  as  hazarding  only  a  portion  of  the  assets  ;  and  in  no 
case  is  the  creation  of  a  trade,  and  more  especially  of  a  partner- 
ship liability,  to  be  inferred  without  clear  provisions  of  the  will, 
and  unambiguous  acts  by  the  representative  in  pursuance  of  the 
powers  conferred  upon  him.*^" 

While  a  testator  may  specifically  limit  the  specific  part  of  the 

'  Laible  v.  Ferry,  32  N.  J.  Eq.   791  ;  Wms.  Exrs.    1793.     And  see  Lucht  v. 

Labouchere  v.  Tupper,  11  Moore,  P.  C.  Behrens,  23  Ohio  St.  231. 
198.  *  Pillgrem  v.  Pillgrem,  45  L.  T.  183. 

-  lb.      The  fee  simple  of  land  may         *  Stanwood  7\  Owen,   14  Gray,   195; 

thus  become  involved.    Laible  z^.  Ferry,  104    Mass.    583;    Wms.    Exrs.    1793; 

supra.  Kirkman?'.  Booth,  11  Beav.  273;  Jones 

^  Laughlin  -■.   Lorenz,  48    Penn.    St.  ?•.  Walker,  103  U.  S.  Supr.  444.     A  will 

275.     Heirs   carrying  on  a  business  as  authorized   the    executors   to  continue 

such  do  not  bind  the  estate  to  debts  of  the  testator's  brewery  business  as  long 

the  concern.     84  Fed.  420.  as  they  should  think  best.     It  was  held 

*  See  Garland,  Ex  parte,  10  Yes.  iio;  that  the  expenses  of  the  business,  losses 

416 


CHAP.    III.]  MANAGEMENT    OF    THE    ASSETS.  §    326^ 

assets  which  shall  be  used  by  the  representative  in  carrying  on 
his  trade,  it  would  appear  from  the  principles  announced  above, 
that  the  representative  himself  necessarily  risks  his  whole  for- 
tune if  he  actively  embarks  in  it.' 

Where,  however,  the  probate  court,  in  the  due  exercise  of  its 
jurisdiction,  authorizes  an  executor  or  administrator  to  advance 
or  borrow  money  to  preserve  a  partnership  business  in  which  the 
estate  is  interested,  such  decree  is  a  protection  to  the  represen- 
tative and  those  dealing  with  him  ;-  and  it  is  held,  furthermore, 
that  where  the  representative  carries  on  the  decedent's  business 
with  the  assent  of  the  creditors,  he  is  entitled  to  be  indemni- 
fied.5 

§  326^^.  The  Same  Subject,  —  In  any  partnership  we  are  still 
to  observe  that,  in  general,  upon  the  death  of  one  partner,  his 
associate  or  copartner  cannot  contract  new  debts  upon  the  credit 
of  the  firm.  Assuming,  however,  that  this  general  rule  may  be 
varied  by  an  express  agreement,  it  is  still  to  depend  upon  the 
particular  terms  of  such  agreement  how  far  the  estate  of  the  de- 
ceased partner  may  be  thus  bound  by  the  surviving  partner ; 
whether  this  estate  shall  be  generally  liable  for  all  the  debts,  or 
only  to  the  extent  of  the  property  embraced  or  left  in  the  part- 
nership to  be  employed  by  the  survivor.     The  presumption  must 


from  bad  debts,  expenditures  for  ordi-  continued  in  business  will  not  be  ple- 
nary repairs  on  the  real  estate  used  in  sumed  to  mean  a  residue  before  debts 
the  business,  and  the  cost  of  necessary  and  testamentary  expenses  are  paid, 
personal  property  were  chargeable   to  5  Dem.  516. 

the  income,  and  this,  although  the  will  'Garland,    Ex  parte,    10  Ves.    no; 

made    no   mention    of    specific   items.  Cutbush    v.    Cutbush,    i    Beav.     184; 

Jones,   Re,  103  N.  Y.  621.     Where  ex-  Wms.   Exrs.   1793;  Laible  v.  Ferry,  32 

ecutors  are  empowered  to  carry  on  a  N.  J.  Eq.  791. 

business  as  long  as  it  shall  prove  ad-  An  executor  may  carry  on  a  trade  as 

vantageous,  the   idea   is   favored   that  executor,  but  he  is  not  the  less  person- 

when  the  body  of  the   estate  fails   to  ally   liable  for  all  the  debts  which  he 

yield  a  sufficient  income,  after  making  may  contract  in  the  trade.    Per  Turner, 

all    current    deductions,    the    business  Lord  Justice,   in    Leeds   Banking  Co., 

shall  be  discontinued.     lb.     Only  that  Re,  L.  R.  i  Ch.  231,  242. 

part  of  the  property  which  the  testator  ^  Mustin's  Estate,  i88  Penn.  St.  544. 

had  used  in  his  business  h"/.  prima  facie  ^  Dowse  v.  Gorton,  (1891)  A.  C.  190; 

to  be  risked  therein.    Wilson  f.  Friden-  (1894)    2    Ch.    600.     Statutes  may   be 

burg,  21    Fla.   386.      A   re.sidue  to  be  found  on  this  topic. 
27                                              417 


§   328  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

be  unquestionably  so  as  to  shelter  the  estate  of  the  decedent  as 
far  as  possible ;  and  hence,  where  capital  has  to  be  left  in  the 
concern  after  one's  death  and  the  representative  takes  no  active 
part  in  the  business,  but  merely  complies  with  the  terms  of  part- 
nership, it  is  assumed  that  nothing  more  than  the  property  left  in 
the  business  is  thus  risked,  and  that  neither  the  decedent's  gen- 
eral estate  nor  the  representative  himself  incurs  additional  lia- 
bility." 

§  327.    Sale,  Investment,  etc.,  of   Perishable   Assets;   Cattle,  etc. 

—  Perishable  assets,  and  such  as  naturally  depreciate  on  his 
hands,  the  representative  should  seasonably  dispose  of,  deposit- 
ing, moreover,  or  investing  the  proceeds,  or  appropriating  them 
in  some  other  suitable  mode.  It  often  happens  that  a  person 
beneficially  interested  will  take  such  assets  at  their  just  valuation,^ 
With  regard  to  cattle  or  live  stock  it  is  the  representative's  duty 
to  take  proper  care  of  them  until  they  can  be  advantageously 
sold,  and  provided  he  deals  with  such  assets  prudently  and  in  a 
businesslike  manner,  his  expenses  incurred  in  regard  to  the 
animals  should  be  allowed. ^ 

§  328.  Rule  as  to  calling  in  Money  already  out  on  Loan  or  In- 
vestment.—  Where  general  law,  or  the  testator's  will,  sanctions 
only  investments  of  a  particular  description,  the  executor  or  ad- 
ministrator cannot  safely  disregard  its  implication,  that  funds 
otherwise  invested  shall  be  promptly  called  in.  In  pursuing 
such  a  duty  he  should  observe  prudence  and  good  faith,  as  in 
other  instances  ;  but  negligence  in  point  of  time  as  to  stocks 
and  securities  of  speculating  and  fluctuating  value  is  culpable, 
especially  if  payments  to  be  made  on  behalf  of  the  estate  render 
the  necessity  urgent  for  realizing  in  cash  promptly.  Unless  it 
appears  highly  probable  that  by  delay  a  better  price  will  be  re- 
alized, the  safer  course  for  the  fiduciary  is  to  sell  disfavored  as- 
sets at  an  early  stage  of  his  administration,  unless  all  the  parties 

'  Stewart  z/.  Robinson,  115  N.  Y.  328.         '  Fernandez  /?<?,   119  Cal.  580.     This 
^  Woods  V.  Sullivan,   i    Swan,    507  ;     is  not  like  carrying  on  a  trade.     lb. 
Morton  v.  Smith,  i    Desau.  128. 

418 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §   329 

in  interest  or  the  court  of  probate  or  chancery  expressly  sanc- 
tion delay.' 

Nevertheless,  reasonable  diligence  and  good  faith  are  regarded 
in  determining  the  representative's  liability  in  such  cases.  That 
the  delay  resulted  on  the  whole  advantageously  for  the  estate 
may  perhaps  be  suf^cient  exoneration.  Nor  can  it  be  said  that 
there  is  any  fixed  period  at  which  loss  by  depreciation  becomes 
chargeable  absolutely  to  the  representative  himself ;  for  it  de- 
pends on  the  particular  nature  of  the  property,  and  the  particu- 
lar circumstances.''  In  England,  where  the  range  of  trust 
investments  is  seen  to  be  quite  limited,  a  different  apphcaticjn 
of  the  rule  may  be  expected  than  in  many  parts  of  the  United 
States.  But  consistently  even  with  the  Enghsh  rule,  leasehold 
property,  or  money  invested  upon  good  real  estate  mortgage 
security,  need  not  be  converted  into  three  per  cent,  consols. 
Nor,  in  general,  is  it  the  duty  of  an  executor  or  administrator 
to  call  in  assets  well  and  productively  invested,  where  no  undue 
risk  is  apparent,  and  the  cash  assets,  together  with  collections, 
and  the  proceeds  of  less  desirable  investments,  will  suffice  for  all 
the  immediate  purposes  of  administration.-'  It  is  the  less  secure 
investments  and  debts  which  demand  one's  keener  vigilance. 

§  329-   Rule  as  to  making  Unauthorized   Loans  or  Investments. 

—  According  to  the  strict   rule  of  common   law,  if  an  executor 
or  administrator  lent  assets  without  authority,  this  was  a  con- 


'  Powell  z'.  Evans,  5  Ves.  839;  Peate        3Wms.Exrs.1817;  7Ves.  150;  Rob- 

f.  Crane,  3  Dick.  499;  Bullock  z/.  Wheat-  inson  v.   Robinson,  i    De  G.   M.  &.  G. 

ley,   I    Coll.    130;    Brazen  v.   Clark,   5  247.     As  to  calling  in  "  confederate  se- 

Pick.  96 ;  Boyd  v.  Boyd,  3  Gratt.  113;  curities  "   in  the  Southern  States,  see 

Wms.  Exrs.  1806, 1815  ;  Moylez'.  Moyle,  Tompkins  v.  Tompkins,  18  S.  C.  i.     In 

2  Russ.  &  My.  710.  The  representative,  New  Jersey  the  statute  protects  a  rep- 
observes  Lord  Cottenham,  is  not  liable  resentative  who  in  good  faith  does  not 
upon  a  proper  investment  in  an  author-  disturb  the  decedent's  investment  in 
ized  fund  for  the  fluctuations  of  that  bank  stock,  though  the  bank  should 
fund,  but  he  is  for  the  fluctuations  of  fail.  42  N.  J.  Eq.  559.  The  general 
any  unauthorized  fund.   Clough  v.  Bond,  rule  of  prudence  and  honesty  applies  as 

3  My.  &  Cr.  496.  to  calling  in  mortgage  securities,  where 
"Buxton  V.  Buxton,  i   M.  &  Cr.  80;  such  investments  are  authorized.    Chap- 

McRae  v.  McRae,  3  Bradf.  Sur.  199.  man  /vV,  (1896)  2  Ch.  763. 

419 


§   330  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

version  for  which  he  became  personally  liable."  This  is  perhaps 
too  harsh  a  statement  to  suit  the  modern  practice,  for  by  the 
probate  and  equity  precedents  it  is  enough  if  he  act  with  hon- 
esty and  due  discretion  as  concerns  what  may  be  called  author- 
ized classes  of  loans.  But  where  one  loans  or  invests  money 
belonging  to  the  estate  in  a  mode  adverse  to  the  directions  of 
the  law,  even  though  honestly  intending  to  benefit  the  estate, 
he  becomes  personally  liable  for  loss  should  the  security  prove 
defective.^  He  is  certainly  liable  if  he  mixes  the  trust  fund 
with  his  own  propert}-  in  such  a  way  that  its  trust  identity  is 
lost  ;■'•  or  if  he  appropriates  the  assets  to  his  own  use,  or,  as  one 
might  sa\-,  loans  it  to  himself,  or  invests  it  in  his  own  property, 
or  deposits  it  as  his  pri\-atc  fund,-*  for  this  would  involve  a  breach 
of  faith.  Even  where  he  invests  in  duly  authorized  securities, 
carelessness  or  bad  faith  evinced  in  the  conduct  of  the  transac- 
tion will  still  render  him  chargeable. 5 

§  330.  Representative's  Acts  are  for  Benefit  of  those  interested 
in  Estate  ;  Good  Faith,  etc.,  required.  —  Good  faith,  as  in  bailments 
and  trusts,  continues  an  element  throughout,  in  the  personal 
representative's  dealings  with  the  assets.  All  the  acts  of  an 
executor  or  administrator  are  by  intendment  for  the  benefit  of 
the  estate  ;  and  he  shall  make  no  personal  gain  or  loss,  except 
as  the  compensation  allowable  on  his  accounts,  for  the  reward 
of  diligence,  fidelity,  and  good  management,  may  be  thereby 
affected.''     Nor  will  he  be  allowed  to  speculate  with  the  funds 

'  Tomkies  v.  Reynolds,  17  Ala.  109;  'See  Kirkman  7/.   Benhani,  28   Ala. 

State  zi.  Johnson,  7  Blackf.  529.  501  ;  Hendenson  v.  Henderson,  58  Ala. 

''As,  e.g.,  in  States  where  loans  on  582;  317a. 
the  personal  security  of  individuals  are  •'Ackerman  7:  Emott,  4  Barb.  626; 
not  permitted.  Moore  v.  Hamilton,  4  Commonwealth  v.  McAlister,  28  Penn. 
Fla.  112;  27  Gratt.  42;  20  La.  Ann.  St.  480;  53  Ala.  169;  75  Va.  792; 
148;  Probate  Judge  v.  Mathes,  60  N.  Williams  z'.  Williams,  55  Wis.  300. 
H.  433.  But  cf.  18  S.  C.  544.  And  so  '  Cason  v.  Cason,  31  Miss.  578.  As 
in  England.  Wms.  Exrs.  1809 ;  Bacon  if  a  real  estate  mortgage  investment 
f .  Clark,  3  M.  &  Cr.  294.  Or  where  should  be  made  without  having  reason- 
one  loans  on  a  second-class  mortgage,  able  assurance  that  the  title  is  good, 
and  beyond  two-thirds  of  the  value  of  Bogart  f.  Van  Velsor,  4  Edw.  Ch.  718. 
the    mortgaged   premises.       Bogart    v.  See  §§323,  324. 

Van  Velsor,  4  Edw.  Ch.  718;  Wilson  ^  See  post,  Part  VII.  c.  2,  as  to  ac- 

i/.  Staats,  33  N.  J.  Eq.  524.  counts;   Wms.   Exrs.    1842,   1967,   and 

420 


CHAP.    III.]  MANAGEMENT    OF    THE    ASSETS.  §    33  I 

for  his  own  profit  or  at  the  risk  of  the  estate.'  Nor  to  acquire 
interests  in  or  bargain  for  benefits  from  the  property  he  con- 
trols ;  nor  in  general  to  take  for  his  own  benefit  a  position  in 
which  his  interests  must  conflict  with  his  duty.^  Nevertheless, 
in  various  modern  instances,  a  purchase  of  fiduciary  assets  and 
interests,  by  the  representative,  is  upheld  as  not  absolutely  ille- 
gal and  void,  though  justifying  a  close  scrutiny  into  the  bona 
fides  of  the  transaction. 3 

Moreover,  the  fiduciary  character  of  the  executor  or  adminis- 
trator extends  to  all  the  parties  interested  with  respect  to  their 
several  rights  and  priorities.  He  cannot  defraud  creditors  for 
the  sake  of  those  entitled  to  the  surplus ;  nor  sacrifice  one  leg- 
atee for  the  benefit  of  the  others. 

§  331.    Assets    should    be    kept    distinct   from   Representative's 

own  Property.  —  Courts  of  equity  require  executors  and  admin- 
istrators to  preserve  the  property  of  the  deceased  distinct  from 
their  own,  in  order  that  it  may  be  known  and  readily  traced  ; 
and  if  they  do  this,  the  courts  will  protect  and  assist  them  to 
the  extent  of  their  power.-*  Property  kept  thus  distinct  cannot 
be  subjected  to  claims  upon  the  representative  in  his  private 
capacity. 5  But  where,  on  the  other  hand,  the  executor  or  ad- 
ministrator commingles  funds  of  the  estate  with  his  own,  so 
that  the  separate  identity  of  the  trust  fund  cannot  be  traced,  he 

notes ;  Cook   v.   Collingbridge,    Jacob,  ^  Sheldon    v.    Rice,    30    Mich.    296 ; 

607;  Paff  7y.  Kinney,  i  Bradf.  i.  Landis  v.   Saxton,  89    Mo.    375;  next 

Where    the    executor   of    a   chattel  chapter, 

mortgagee  bought  in  the  equity  of  re-  '  §  358, /^.r/. 

demption  in  his  own  name,  and  for  his  *•  Hagthorp  v.  Hook,  i  Gill  &  J.  270. 

own  benefit,  he  was  held  to  be  a  trustee  And  see  Calvert  v.  Marlow,  6  Ala.  337  ; 

for  the  benefit  of  the  testator's  estate.  Robinett's   Appeal,  36    Penn.  St.   174; 

Fosbrook  v.   Balguy,  i  My.  &  K.  226.  Newton  t'.  Poole,  12  Leigh,  112. 

If  an  executor  lends  money  of  the  es-  '  Branch  Bank  v.  Wade,  13  Ala.  427. 

tate  in  his  individual  capacity,  and  takes  A  bank  depo.sit  kept  by  A  as  adminis- 

a  bond  and  mortgage  payable  to  himself  tralor  cannot. be  applied  by  the  bank  to 

individually  and  dies,  his  personal   rep-  a  check  drawn  in  his  individual   name, 

resentative  only  can  enforce  the  securi-  58  Ohio  St.  207.     His  own  representa- 

ties.     Caulkins  z/.  Bolton,  98  N.  Y.  51 1,  tive  and  not  an  administrator  </,? /'(^w/j- 

'  Callaghan  v.  Hill,   i    S.  &  R.  241  ;  71071  is  entitled  to  such  a  fund  on  his 

Kellari'.  Beelor,  5  T.  B.  Mon.  573;  post,  death.     153  Penn.  St.  345. 
as  to  accounts. 

421 


§    333  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 

is  held  accountable,  at  the  option  of  the  beneficiaries,  as  though 
for  a  conversion,'  and  interest  is  sometimes  compounded  on  the 
fund  by  \va)'  of  a  penalty  or  in  lieu  of  the  estimated  profits.' 
The  representative  should  not  mingle  what  he  holds  in  different 
capacities ;  such  for  instance  as  executor  and  guardian. ^ 

s^  332.  Liability  qualified  when  Acts  are  performed  under  Ad- 
vice and  Assent  of  the  Parties  in  Interest.  —  We  may  presume 
that  the  personal  representative  can  never  be  strictly  justified 
in  deviating  from  the  line  of  bailment  or  fiduciary  duty.  But, 
in  case  of  doubt  as  to  his  proper  course,  he  may  protect  himself 
by  prudently  pursuing  in  advance  one  of  two  courses  :  ( i )  he 
may  procure  the  advice  and  assent  of  all  the  parties  in  interest ; 
or  (2)  he  may  take  the  direction  of  the  court.  On  the  first 
point  it  is  laid  down  in  a  recent  case,  that  the  personal  repre- 
sentative who  in  a  particular  transaction  acts  in  good  faith,  under 
the  direction  of  all  the  parties  who  are  interested  in  the  estate, 
is  to  be  protected,  when  he  renders  his  accounts,  from  a  claim 
on  their  part  that  he  has  not  administered  strictly  according  to 
law,  in  respect  to  such  transaction.  He  may  prosecute  or  de- 
fend suits,  compromise  claims  upon  the  estate,  or  deal  with  the 
estate  in  a  particular  way,  not  usual  or  strictly  legal,  as  by  con- 
tinuing the  property  in  business  ;  and  those  parties  in  interest, 
by  whose  request  or  assent  it  has  been  done,  will  not  be  per- 
mitted to  impute  it  as  maladministration.-'  But  parties  in  in- 
terest who  give  no  such  assent  or  authority  can,  of  course,  call 
his  conduct  to  account.' 

§  333.  Liability  qualified  where  Acts  are  performed  under  Di- 
rection of  the  Court.  —  The  personal  representative  may  take  the 

'Henderson  v.   Henderson,   58    Ala.  103  Mass.  174,  where  property  was  thus 

582.     But  see  Kirby  v.   State,  51    Md.  continued    in     business.     In    Perry   v. 

383;  51  Md.  352.  ,  \\'ooten,  5   Humph.  524,  indulgence  of 

*  Gilbert's  Appeal,  78  Penn.  St.  266;  a  debtor  was  sanctioned  by  the  parties 
Nettles  V.  McCown,  5  S.  C.  43 ;  Mc-  interested.  So,  too,  Watkins  v.  Stew 
Kenzie  v.  Anderson,  2  Woods,  357.  art,  78  Va.  1 1 1  ;  99  Tenn.  462.     And  see 

^  Hedrick  v.  Tuckwiller,  20  W.  Va.  post.  Part  VII.,  as  to  accounting;  13 
489.  Phila.  195. 

*  See  Coll,   J.,  in   Poole  v.   Munday,         '  See  Orr  v.  Orr,  34  S.  C.  275. 

422 


CHAP.   III.J  MANAGEMENT    OF    THE    ASSETS.  §    334 

direction  of  the  court.  Enabling  acts  of  this  character,  to  be 
found  in  our  codes,  permit  the  executor  or  administrator  to  con- 
sult the  probate  or  county  court  in  many  instances,  and  take  its 
direction  after  an  inexpensive  and  summary  course,  notwithstand- 
ing he  might  have  acted  without  its  direction.  Thus  he  may 
ask  permission  to  make  a  certain  sale  or  pledge  of  personal 
property,  to  invest  after  a  certain  manner,  to  change  an  invest- 
ment, to  compromise  or  submit  to  arbitration  a  specified  claim, 
or  to  perform  some  contract  of  his  decedent.  But  in  most  if 
not  all  of  such  cases,  as  is  shown  elsewhere,  the  executor  or 
administrator  may  perform  without  an  order  of  court  upon  the 
usual  risks  of  a  fiduciary,  and  the  statute  is  not  imperative  in 
requiring  him  to  seek  judicial  direction  in  advance.' 

Courts  of  probate  are  in  various  States  empowered  to  author- 
ize the  money  belonging  to  an  estate  in  process  of  settlement, 
or  balances  or  special  funds  which  require  to  be  set  aside  unus- 
ually long,  to  be  deposited  in  certain  designated  banks  or  insti- 
tutions ;  or  to  be  temporarily  invested  in  approved  securities.^ 
But  such  courts  have  no  inherent  authority  to  control  the  rep- 
resentative as  to  how  or  where  the  latter  shall  keep  the  assets.^ 

§  334.  Rule  where  Control  is  taken  by  Court  out  of  Represent- 
ative's Hands.  ^  In  this  latter  connection  we  may  add,  that  where 
the  control  of  assets  is  taken  out  of  the  power  of  the  personal 
representative,  by  the  act  of  the  law,  orders  of  the  court  of  pro- 
bate or  chancery,  or  other  paramount  authority,  his  strict  fidu- 
ciary relation  towards  it  so  far  ceases,  together  with  his  personal 
liability  for  its  care  and  management.'*  The  English  chancery 
court,  after  a  decree  to  account,  does  not  permit  an  executor  or 
administrator  to  invest  without  its  leave  or  without  its  order.s 
And,  in  some  of  the  United  States,  similar  safeguards  are  to  be 
found  for  various  instances  ;  the  probate  court  making  orders  as 
to  loans  and  investments,  to  the  intent  that  no  exercise  of  his 
own  private  judgment  shall  relieve  the  representative  from  in- 

'  Smith  V.  Wilmington  Coal  Co.,  83  ^  Mass.  Pub.  Stats,  c.  156,  §  32. 

111.  498;  Richardson  v.  Knight,  69  Me.  '  Welch's  Estate,  no  Cal.  605. 

285.    But  see  contra,  Garesche  v.  Priest,  ■»  Hall's  Appeal,  40  Penn.  St.  409. 

78  Mo.  126.  5  Wms.  Exrs.  1809;  2  Meriv.  494. 

423 


§    335  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

dividual  liability.'  Even  while  pursuing  the  orders  of  a  court, 
the  representative  may  incur  a  personal  liability  if  he  disregard 
the  judicial  directions.-  But  paying  over  the  funds  to  the  judge 
of  probate,  on  the  latter's  order,  the  personal  representative 
becomes  discharged  from  all  further  liability,  under  such  stat- 
utes.3 

§  335-  Directions  of  a  Will  as  to  Investment,  etc.,  may  be  rea- 
sonably followed;  Specific  Legacy,  etc. —  Directions  of  the  tes- 
tator's will  as  to  the  deposit  or  investment  of  particular  funds 
are  not  to  be  disregarded.^  Thus,  even  the  cautious  rules  of 
English  chancery  justify  an  executor  in  laying  out  a  fund  in  real 
or  personal  securities  at  discretion,  or  loaning  to  private  individ- 
uals, wherever  the  testator  so  directed,  provided  a  fair,  honest, 
and  prudent  judgment  be  exercised  in  doing  so.5  Oral  instruc- 
tions of  the  decedent,  however,  cannot  justify  a  diversion  of 
trust  funds.^  And  even  as  to  wills,  the  doctrine  applies  not 
without  restrictions.  For  not  only  may  an  executor  incur  U- 
ability  by  persistently  carrying  out  testamentary  directions  of 
this  sort,  plainly  inapplicable  to  existing  circumstances,  —  as  if 
for  instance,  the  will  directed  an  investment  in  the  stock  of  a 
particular  corporation,  which  had  since  become  embarrassed  ; '' 
but  it  is  fairly  established  at  length  in  the  courts,  notwithstand- 
ing some  hostile  criticism,  that  a  testator's  directions  as  to  in- 

'  Bacon    ?'.    Howard,     20    Md.    191  ;  ^  Even  though  the  judge's  order  be 

Lockhart    v.    Public    Administrator,    4  verbally  expressed.     Doogan  v.  Elliott, 

Bradf.  21  ;  Fowle  e/.  Thompson,  5  Rich.  43  Iowa,  342.     And  see  87  Md.  284. 

Eq.  491  ;  Doogan  v.   Elliott,  43  Iowa,  ■*  Wms.  Exrs.  1809;  Forbes  v.  Ross, 

342.    The  general  powers  of  a  surrogate  2  Cox,  116;  Gilbert  v.  Welsh,  75  Ind. 

embrace  the  power  to   disapprove  in-  557;  Smyth  v.    Burns,    25    Miss.  422; 

vestments  made  by  an  executor.     Jones  Hogan  v.   Ue   Peyster,   20  Barb.    100; 

V.    Hooper,    2    Dem.    14.     The    court  McCall  -a  Peachy,  3  Munf.  288. 

should  not  make  any  order  which  con-  '  Wms.  Exrs.  1809.     And  see  Nelson 

flicts  with   the  lawful    directions  of  a  z/.  Hall,  5  Jones  Eq.  32  ;  Smyth  ».  Burns, 

will.     Hindman  v.  State,  61  Md.  471.  25  Miss.  422. 

^  See  next  c.  as  to  sales  under  judicial  *  Malone  v.  Kelley,  54  Ala.  532. 

direction;  McDonald  A'e,  4  Redf.  321.  'If  the  testator's  directions  cannot 

But  in  sudden  and  great  emergencies,  be  followed  because  no  such  securities 

the  representative's  prudent   disregard  as  he  directs  are  offered,  the  representa- 

of  such  requirements  will  be  leniently  tive  may  prudently  deposit  on  intere.st 

treated.    Moitonz-.  Smith,  i  Desau.  128.  in  a  savings  bank.     Lansing  z^.  Lansing, 

424 


CHAP.    III.]  MANACiEMENT    OF    THE    ASSETS.  §    335^? 

vestment  apply  with  the  truer  force  against  legatees,  their  inter- 
est being  founded  in  his  gift,  and  not  as  against  creditors,  whose 
just  demands  must  be  met  irrespective  of  a  testator's  intentions.' 
And  hence,  a  creditor  may  not  be  concluded  by  losses  incurred 
through  a  fiduciary's  loan  or  investment,  such  as  the  will  sanc- 
tions, but  not  the  rule  of  the  courts  and  legislature,  while  a  leg- 
atee would  be  concluded.^ 

A  will  may,  however,  control  the  direction  of  the  executor 
or  administrator  in  other  ways  ;  as  by  requiring  him  to  invest, 
where  otherwise  the  fund  might  have  been  left  idle  ;  or  to  place 
money  in  securities  to  which  he  would  otherwise  not  have  been 
confined.^  To  invest  less  securely  than  the  testator  directs, 
renders  the  representative  liable  personally.*  The  court  may 
authorize  a  sale  or  change  of  investment,  agreeably  to  one's 
will.5 

A  specific  legacy  should  usually  remain  invested  in  the  spe- 
cific security  or  chose  set  apart  and  designated  for  that  purpose 
by  the  will." 

§  335'^'-   Lending    without    Security    or    on    Poor    Security. — 

Lending  to  an  individual  without  security  at  all  is  usually  con- 

45    Barb.    182.      Reasonable   delay  in  power  to  invest  in  unsecured  notes.     5 

following  the  order  of  the  will  as  to  in-  Dem.  269.     A  power  to  sell   does  not 

vestment,  conversion,  etc.,  is  excused,  authorize  the  exchange  of  bank  stock 

Stretch  v.  McCampbell,  i  Tenn.  Ch.  41.  for  bonds.     Columbus  Ins.  Co.  v.  Hum- 

'  Wms.  Exrs.   1809,  1836;  Churchill  phries,  64  Miss.  258;  39  N.  J.  Eq.  249. 

V.  Hob.son,   I    P.   Wms.  242 ;  Doyle  v.  '  See  95  Ga.  707. 

Blake,  2  Sch.  &  Lef.  239;  Lewin  Trusts,  ^  See  this  rule  stated  with  its  limita- 

5th  Eng.  ed.  222 ;  McNair's  Appeal,  4  tions  in  Ward  v.  Kitchen,  30  N.  J.  Eq. 

Rawle,  148.     Cf.  upon  this  distinction  31.     Also  the  construction  of  a  direc- 

between  legatees  and  creditors,  i  Eden,  tionto  invest  "  in  productive  funds  upon 

148;    Sadler  v.   Hobbs,    2   Bro.   C.   C.  good  securities,"  etc.     lb. 

117.     As  to   dispensing  with  leave  of  Power  under  a  will  to  change  invest- 

court,  see  88  Ind.  i.  ments,  etc.,  may  control  other  clauses 

^  Doyle  V.   Blake,   stipra  ;    McNair's  directing  a  particular  investment,  under 

Appeal,  4  Rawle,  148.  appropriate    circumstances.      See    Ste- 

^  Shepherd  v.  Mouls,  4  Hare,  503.  phens  v.   Milnor,   24    N.    J.    Eq.    358 ; 

*  Nyce's  Estate,  5  W.  &  S.  254;  Mc-  Pleasant's  Appeal,  77  Penn.  St.  356. 
Kensie  v.  Anderson,  2  Woods,  357.  If  Where  executors  are  directed  by  the 
a  will  directs  investments  to  be  in  a  will  to  loan,  etc.,  on  interest  for  a  .stipu- 
suitable  manner  at  the  executor's  dis-  lated  time,  they  may  presumably,  at  dis- 
cretion, this  does  not  give  discretionary  cretion,  loan  for  less  than  the  full  time, 

425 


§    336  liXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

demned  in  trust  transactions.  Lending  also  on  poor  security, 
such  as  a  life  insurance  policy,  is  disapproved.'  But  security 
might  be  taken  from  a  failing  debtor  in  good  faith  and  with 
reasonable  prudence,  which  was  the  best  he  had  to  offer,  where 
the  original  debt  was  due  to  the  decedent.^ 

§  336.  Summary  of  Doctrine  as  to  Management  and  Invest- 
ment ;  Deviations,  when  permitted.  —  The  general  management 
and  investment  of  the  assets  is  seen  to  be  affected  by  statute, 
judicial,  or  perhaps  testamentary  directions,  whose  tendency  is 
to  restrain  the  executor  or  administrator  to  a  particular  course 
of  action.  Thus  the  general  bailment  doctrine  of  prudent  dis- 
cretion and  good  faith  becomes  affected  by  requirements  that  the 
investment  shall  be  made  in  specified  classes  of  securities,  or  that 
the  moneys  collected  shall  be  placed  with  certain  depositaries. 
For  such  cases  the  rule  is  fairly  stated  thus  by  Lord  Cottenham  : 
"  Although  a  personal  representative,  acting  strictly  wdthin  the 
line  of  his  duty,  and  exercising  reasonable  care  and  diligence, 
will  not  be  responsible  for  the  failure  or  depreciation  of  the  fund 
in  which  any  part  of  the  estate  may  be  invested,  or  for  the  in- 
solvency or  misconduct  of  any  person  who  may  have  possessed 
it  ;  yet,  if  that  line  of  duty  be  not  strictly  pursued,  and  any  part 
of  the  property  be  invested  by  such  personal  representative  in 
funds  or  upon  securities  not  authorized,  or  be  put  within  the 
control  of  persons  who  ought  not  to  be  intrusted  with  it,  and  a 
loss  be  thereby  eventually  sustained,  such  personal  represent- 
ative wnll  be  liable  to  make  it  good,  however  unexpected  the  re- 
sult, however  little  likely  to  arise  from  the  course  adopted,  and 
however  free  such  conduct  may  have  been  from  any  improper 
motive."  ^  This  is  a  principle  not  unfamiliar  to  the  law  of  bail- 
ments, which  holds  a  bailee  strictly  liable  who  deviates  from  the 
terms  of  his  bailment.' 

and  re-loan  from  time  to  time,  or  change  Exs.   1806;  Bacon  v.  Clark,  3   My.  & 

the  security,  as  they  may  deem  prudent.  Cr.  294. 

Miller  v.  Proctor,  20  Ohio  St.  442.     In  '  39  N.  J.  Eq.  249;  19  Fla.  300. 

executing  the  trust,   there  must  be  no  '^  See  Torrence  v.  Davidson,  92  N.  C. 

negligent  or  dishonest  performance  of  437;  Dabney's  Appeal,  14  Atl.  158. 

the    directions  contained    in    the   will.  ^  Clough  v.  Bond,  3  M.  &  Cr.  496. 

Styles  V.  Guy,  i   Mac.  &  G.  422  ;  Wms.  *  See  Schoul.  Bailm.  §§  17,  18. 

426 


CHAP.   III.]  MANAGEMENT    OF    THE    ASSETS.  §    33^ 

Yet  a  deviation  from  the  strict  terms  of  a  bailment  by  reason 
of  necessity  is  admitted  to  excuse  a  bailee,  —  perhaps  because 
every  rule  finds  its  exception  ;  and  as  Lord  Cottenham  further 
observes,  necessity,  which  includes  the  regular  course  of  busi- 
ness in  administering-  the  property,  will  in  equity  exonerate  the 
personal  representative.' 

s5  337.  Management,  Investment,  etc.,  by  Executor  or  Adminis- 
trator similar  to  that  by  Guardian,  Trustee,    etc.  —  The  principles 

discussed  in  this  chapter  bear  a  close  analogy  to  those  which 
the  courts  apply  to  guardians  and  testamentary  trustees,^  as  well 
as  to  what  the  law  usually  denominates  bailees  ;  ^  with,  however, 
essential  differences  in  the  character  of  the  office  already  pointed 
out. 

§  33^-  Election  to  charge  Representative  or  to  accept  the  In- 
vestment.—  Where  the  executor  or  administrator,  or  other  fidu- 
ciary, loans  the  trust  money  without  authority  of  law,  or  makes 
other  unauthorized  use  of  it,  the  rule  is  that  the  cestui  que  trust, 
or  beneficiary,  may  elect  either  to  charge  him  with  the  fund 
thus  used,  or,  instead,  to  accept  the  investment.'*  When  the 
executor  or  administrator  is  charged  with  and  accounts  for  the 
fund  so  used,  it  becomes  his  individual  property,  and  he  acquires 
the  full  rights  of  a  beneficial  owner.s  A  similar  right  of  elec- 
tion avails,  where  the  fiduciary  was  bound  to  invest  in  a  certain 
manner,  and  did  not,  so  as  to  charge  him  with  the  amount  which 
might  have  been  realized  had  the  specific  investment  been  prop- 
erly made.^ 

'  Clough  z'.  Bond,  j-z^/ra  ;  Wms.  Exrs.         ''Cloughz/.  Bond,  5   My.  &  Cr.  496; 
1S20.     And    see    Morton   v.    Smith,    i      Waring  z/.  Lewis,  53  Ala.  615. 
Desau.  128.  =  Warren  v.  Lewis,  53  Ala.  615. 

^See  e.g.,Yi\\\  Trustees,  368-384,  ^Wms.  Exrs.  1815;  Shepherd  v. 
and  Wharton's  notes ;  Perry  Trusts,  Mouls,  4  Hare,  503 ;  Darling  v.  Ham- 
§§452-464;  Schoul.  Dom.  Rel.  §§352-  mer,  5  C.  E.  Green,  220.  But  aliter,  it 
354-  appears,  if  no  fund  was  specified ;  for 

^ Supra,  %->j\^.  such  a  rule  becomes  impracticable,     i 

De  G.  M.  &  G.  247  ;  Wms.  Exrs.  1S15. 
427 


§    340  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 


CHAPTER  IV. 

THE    representative's    POWER    TO    SELL,     TRANSFER,     AND 

PURCHASE. 

§  339-  Representative's  Power  to  dispose  of  Assets. —  For  the 
sake  of  an  efficient  administration  of  the  estate  which  he  repre- 
sents, the  absohite  control  of  the  personal  property  of  the  de- 
cedent, for  purposes  of  his  trust,  is  vested  by  law  in  the  executor 
or  administrator,  and  he  has  the  legal  power  to  dispose  of  any 
and  all  of  such  property  at  discretion.  This  rule,  as  we  have 
seen,  prevails  where  no  statute  opposes  restraints ;  and  while  it 
is  the  representative's  duty  to  use  reasonable  diligence  in  con- 
verting assets  into  cash,  for  the  general  purposes  of  his  trust, 
the  law  permits  him,  within  certain  limits,  to  exercise  a  reason- 
able discretion  as  to  the  time  when  he  shall  make  a  transfer  of 
assets,  and  the  manner  in  which  his  right  of  disposition  shall  be 
exercised.'  Sound  judgment  and  honesty  on  the  representa- 
tive's part  may  be  presumed  by  the  buyer  in  such  a  case  ;  and 
provided  he  purchase  bona  fide  for  a  fair  consideration,  and  with- 
out fraudulent  collusion,  his  title  to  personal  assets  of  the  de- 
cedent, derived  through  the  lawful  executor  or  administrator, 
must  prevail  against  the  world.^ 

§  340.  Sale  or  transfer  can  only  be  made  while  the  Represen- 
tative holds  office.  —  A  sale  or  transfer  made  by  an  executor  or 

'  Supra,    §  322  ;     Wms.    E.xrs.    932  ;  or  administrator  in  many  instances  must 

Nugent  V.  Giffard,  i  Atk.  463  ;  Whale  sell  in  order  to  perform  his  duty  in  pay- 

V.  Booth,  4  T.  R.  625.     He  must  e.\er-  ing  debts,  etc. ;  and  no  one  would  deal 

cise  due  diligence  as  well  as  good  faith,  with  an  executor  or  administrator  if  lia- 

in  making  a  sale  of  assets.     loS  N.  C  ble  afterwards  to  be  called  to  account. 

69.     Statute  restraints  of  a  local  char-  Whale  -■.  Booth,  4  T.  R.  625,  per  Lord 

acter  must  be  locally  observed.    74  Cal.  Mansfield.     And  see  Wms.  Exrs.  934, 

536.  935  ;  Scott  V.  Tyler,  2  Dick.  725  ;  Leitch 

*The  principle  is,  that  the  e.xecutor  v.  Wells,  48  N.  Y.  585. 

428 


CHAP.   IV.]    KErKESENTATlVES    I'OWEK    TO    SliLI.,    ETC.  §    342 

administrator  while  in  office  is  not  rendered  the  less  valid  as 
respects  third  parties  by  the  later  revocation  of  his  authority, 
or  his  resignation  or  removal  ;  and  as  for  its  justification  in  the 
settlement  oi  his  accounts,  the  cardinal  rule  of  good  faith  and 
due  prudence  still  ajjplies.'  But  a  sale,  made  after  the  title 
wiiich  tlevolved  upon  him  al  the  death  oi  his  testator  or  intes- 
tate has  become  dixested  by  his  removal  or  otherwise,  cannot 
be  good,  for  he  has  not  a  title  to  confer.-" 

§  341.    Whether   Assets    should   be    sold   at    Public   or   Private 

Sale. —  The  general  rule  is  that  the  representative's  sale  of  his 
decedent's  personal  property  may  be  either  at  private  or  public 
sale,  provided  the  sale  be  reasonably  prudent  and  honest.^  But 
an  auction  or  public  sale  best  vindicates  the  representative's 
good  conduct,  where  the  amount  actually  realized  falls  short  of 
the  appraised  value,  and,  on  the  whole,  is  the  safer;  and  in 
some  States,  indeed,  the  representative  must,  unless  protected 
by  judicial  directions,  sell  at  public  sale,  or  no  title  will  pass  to 
the  purchaser.'  Where  the  representative  sells  fairly  at  i)ul)lic 
sale,  he  is  only  responsible  for  what  the  property  brought  ;  where 
he  sells  at  private  sale,  the  full  value  appears  the  test,  rather 
than  the  price  obtained  ;  but  in  either  case,  if  the  sale  be  fair 
and  honest,  the  purchaser,  according  to  the  usual  rule,  takes  a 
good  title. 5  The  representative  may  appoint  an  agent  or  auc- 
tioneer to  sell  for  him.'' 

§  342.    Sale  of  Goods  bequeathed  for  Life  with  Remainder  over. 

—  A  residue  of  goods  which  are  given  for  life  with  a  remainder 
over,  ought  to  be  sold  by  the  executor,  if  the  trust  is  confided  to 

'Benson  ?'.   Rice,  2   Nott.  &  M.  577  ;  Butler  v.  Butler,  10  R.  I.  501.     The  11- 

Price  7A  Nesbit,  i  Hill   (S.  C.)  Ch.  445.  linoi.s  statute  requires  the  administrator, 

And  see  Soye  ?'.  McCallister,  18  Tex.  80.  whenever  he  sells  on  credit,  to  take  secu- 

^Whorton  v.  Moragne,  62  Ala.  201.  rity,  and  if  loss  results  from  his  failure 

^Mead  v.  Byington,  10  Vt.  116;  Tyr  to  do  so,  he  must  bear  it.     Bowen  v. 

rell  V.  Morris,  i  Dev.  &  B.  Eq,  559;  99  Shay,  105  111.  132. 
Tenn.  462.  '  Lothrop  v.  Wightman,  41  Penn.  St. 

•*  Bogan  V.  Camp,  30  Ala.  276;  Mc-  297,  302;  71  Hun  (N.  Y.),  32. 
Arthur  t'.  Currie,  32  Ala.  75;  Gaines  z/.         *  Lewis  v.  Reed,  11    Ind.  239;  Dick- 

De  la  Croix,  6   Wall.   719;  Weyer  ?■.  son,  /v'f,  6  La.  Ann.  754. 
Second  Nat.  Bank,  57  Ind.   198.     See 

429 


§   345  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

him  ;  and  the  interest  or  money  on  the  invested  proceeds  of  the 
sale  should  be  paid  to  the  legatee  for  life,  the  principal  being 
kept  for  the  remainder  man.' 

§  343.  Power  of  Representative  to  dispose  of  Chattels  specifi- 
cally bequeathed.  —  The  power  of  the  executor  to  transfer  and 
dispose  of  a  chattel  specifically  bequeathed,  though  sometimes 
questioned,  appears  on  the  whole  to  be  well  established,  as  fol- 
lowing the  general  rule  of  personal  assets.^  But  cautious  ad- 
ministration appears  to  require,  in  order  to  clear  the  representa- 
tive himself  and  a  purchaser  who  happens  to  be  aware  of  such 
bequest,  that  the  specific  legatee  should  concur  in  the  transfer;^ 
for,  undoubtedly,  the  executor's  assent  to  the  legacy,  so  as  to 
divest  his  title  in  favor  of  a  specific  legatee,  is  readily  presumed 
wherever  the  estate  is  ample  to  meet  demands  upon  it ;  and  un- 
less the  general  personal  assets  fail,  the  executor  commits  a 
breach  of  duty  in  disposing  of  property  bequeathed  specifically.'' 

§  344.  Sales  of  Perishable  Assets,  etc.  —  Sales  of  personal 
property  of  a  decedent's  estate,  when  liable  to  waste,  or  when 
of  a  perishable  nature,  may  be  expressly  authorized  by  the  court, 
as  some  statutes  provide  ;  such  provisions,  however,  having  a 
fitter  relation  to  special  administrators,  collectors,  and  the  like, 
than  to  the  general  administrator  or  executor,  whose  discretion 
to  sell  for  the  preservation  and  benefit  of  the  estate  cannot  be 
doubted. 5 

§  345.  Representative's  Sale  of  his  Decedent's  Business. —  An 
executor  or  administrator  has  authority  to  dispose  of  the  business 
of  his  decedent,  including  the  stock  in  trade  and  good  will ;  he 

■  Jones  z'.  Simmons,  7  Ired.  Eq.  178.  purchases     a    chattel     specifically    be- 

See  Sarle  v.  Court  of  Probate,  7  R.  I.  queathed,  knowing  that  it  was  thus  be 

270.  queathed,  and  that  there  are  no  debts, 

*2  Vern.  444;  Ewer  v.  Corbet,  2   P.  will  take  his  title  subject  to  the  bequest. 

Wms.   149;  Langley   v.   Lord  Oxford,  Garnet  z'.  Macon,  6  Call.  308. 

Ambl.  17;  Wms.  Exrs.  934.  'Public  Administrator  v.  Burdell,  4 

3  Wms.  Exrs.  934,  and  note,  citing  2  Bradf.  252;  Redf.  (N.  V.)  Sum  Pract. 

Sugd.  Vendors,  56,  9th  ed.  175;    Harris    v.    Parker,   41    Ala.   604. 

*  See  post  as  to  legacies.     One  w]u>  And  see  supra,  §  327. 


CHAP.   IV.]     representative's    POWER    TO    SELL,    ETC.  §    345 

may  also  sell  out  the  stock  on  hand  separately,  in  the  exercise  of 
a  reasonable  discretion  ;  but  he  should  be  heedful  how  he  incurs 
personal  risks  by  undertaking,  without  authority,  to  carry  on 
the  trade  himself.'  So,  too,  the  representative  of  a  deceased 
partner  may  dispose  absolutely  of  his  decedent's  interest  in  the 
assets  of  a  firm  to  the  surviving  partner,  or  to  any  other  person 
under  the  same  qualifications  ;  and  he  may  accept  cash  or  other 
personal  property  in  payment,  if  the  bargain  be  a  fair  one.^ 
Circumstances  may  arise  under  which  the  representative's  sale, 
made  to  the  surviving  partner  simply  in  order  to  transfer  to  him 
the  legal  title  to  be  used  for  settling  the  business,  may  prove 
valueless  to  the  estate  ;  as  where  the  whole  firm  property  is 
needed  to  satisfy  the  firm  debts. ^  And  one  must  take  care  that 
he  does  not  transcend  a  statute  which  forbids  private  sales  with- 
out specific  authority. ■♦ 

A  personal  representative  who  trades  actively  with  his  dece- 
dent's business  stock,  renders  himself  a  trader,  on  the  one  hand, 
to  those  with  whom  he  deals,  while,  on  the  other,  he  continues 
accountable  to  the  estate  for  the  value  of  the  stock  thus  per- 
verted, and  its  profits. ^  But  merely  to  sell  out  the  stock  in 
hand,  without  increasing  what  the  decedent  left,  does  not  con- 
stitute the  representative  a  trader ;  for  it  is  a  question  of  inten- 
tion to  carry  on  the  trade,  which  must  be  inferred  from  circum- 
stances.^ Where  an  executor,  in  carrying  on  a  trade  under  a 
power  contained  in  the  will,  abuses  his  authority,  by  taking  out 
a  new  lease  of  the  premises  in  his  own  name,  and  then  borrows 
money  on  the  security  of  the  lease,  the  equity  of  the  testator's 
estate  to  the  renewed  lease  will  take  precedence  of  the  lender's 
equity  to  such  security.^ 

'  Supra,  §  325.  L.  R.  i  Ch.  231  ;  Evans,  Re,  34  Ch.  D. 

^  Roy  z/.  Vilas,   18  Wis.  169;  Holla-  597. 

day  V.   Land  Co.,  57    Fed.  774.     And  ^  Wms.  Exrs.  1794. 

see  as  to  carrying  on  a  partnership  trade,  ^  Piilgrem  v.  Pillgrem,  45  L.  T.  183. 

§  325,  326,  376.  For  the  equity  of  the  estate  attached 

'  Merritt  v.  Dickey,  38  Mich.  41.  the  moment  the  new  lease  was  granted, 

*  Tell  Furniture  Co.  v.  Stiles,  60  Miss,  and  the  lender's  equity  not  until  the  loan 

849.  was   made;  and   of    two    parties   with 

'  See  supra,  §  326 ;   Wood's   Estate,  equal    equities,    qui  prior   est  tei7ipore, 

I   Ashm.  314;  Leeds  Banking  Co.,  Re,  potior  est  jure.     Nor  can  it  in  such  a 


§    346  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  346.  Sales  and  Transfers  of  Personal  Assets  under  Probate 
Direction.  —  Local  legislation  in  the  United  States  aids,  some- 
times, the  representative's  inherent  power  over  the  personal  assets. 
Thus,  a  Massachusetts  statute  provides  that  a  probate  court,  after 
the  return  of  the  inventory,  may  order  a  part  or  the  whole  of  the 
personal  estate  of  the  deceased  to  be  sold  by  public  auction  or 
private  sale  as  may  be  deemed  most  for  the  interest  of  all  con- 
cerned ;  application  for  such  an  order  may  be  made  by  the  rep- 
resentative or  by  any  person  interested  in  the  estate  ;  and  the 
representative  shall  account  for  the  property  so  sold  at  the  price 
for  which  it  sells."  This  act  does  not  restrain  executors  and 
administrators  in  their  general  authority  to  alienate  the  personal 
assets,  except,  perhaps,  in  affording  interested  parties  an  oppor- 
tunity to  apply  for  an  order  directing  the  manner  of  sale ;  but 
its  main  object  appears  rather  to  protect  the  representative, 
where  dehcate  management  is  needful  for  settling  the  estate 
properly.  So,  too,  the  New  York  statute  pro\'ides  for  a  formal 
sale,  public  or  private,  of  personal  property  so  far  as  may  be 
needful,  under  judicial  direction,  if  the  executor  discovers  that 
debts  and  legacies  cannot  otherwise  be  paid  and  satisfied.^  Stat- 
utes of  a  similar  character  may  be  found  in  other  States  ;  ■'  the 

case  be  said  that  the  lender  was  a  pur-  estate,  be  sold  in  good  faith  and  with 

chaser  without   notice,  for  had   he  in-  ordinary  prudence,  the  representative  is 

(juired  he  would  have  been   placed  on  justified,  even  though  he  sold  at  a  de- 

his  guard.  preciation,    and    the    stock   aftenvards 

'  Mass.  Pub.  Stats.  (1882)  c.  133,  §  3.  rose  much  higher.     Green,  AV,  ;^-]  N.  J. 

^  2   N.  Y.  Rev.  Stat.s.  87,  §  25 ;  Red-  Eq.  254. 

field's  (N.  Y.)  Surrogate  Pract.  236.  The  power  of  the  probate  court  to 

^Gary's    Prob.    Pract.    §334;  Wise,  order  a   sale  of    personal    propeity  is 

Stats.  §  3837  ;  Gen.   Stat.   ^Minn.  c.  54,  conferred  by  a  statute,  and  quoad  hoc, 

§  4.     See   also   Joslin  v.  Caughlin,   26  the  probate  court  is  a  tribunal  of  spe- 

Miss.    134.     In  some  States  a  sale  of  cial  jurisdiction,  and  mu.st  pursue  the 

stocks  cannot  be  made  without  license  statute   requisites.     Hall  v.  Chapman, 

of  the  probate  court  unless  the  repre-  35  Ala.  553.     Sale  cannot   be  ordered 

sentative  assumes  the  whole  inventory  at  the  instance  of  a  personal  represen- 

of   the   estate   at   its  appraised  value,  tative,  unless  the  title  which  devolved 

French  v.  Currier,  47    N.  H.  88.     Or  it  upon    such    representative    remains   in 

is  held  that  the  representative  must  not  him.     Whorton   v.    Moragne,   62    Ala. 

sell  without  order  of  court  for  le.ss  than  201.     As  to  the  object  of  such  sale,  as 

the   appraised   value  of    the    property,  set  forth  by  petition,  see  Ikelheimer  v. 

Munteith  v.  Rahn,  14   Wis.   210.     But  Chapman,  32  Ala.  676. 

in   general,   if   stock   belonging  to  the  The  executor  or  administrator  need 


CHAP.  IV.]  representative's  POWER  TO  SELL,  ETC.     §  346 

general  right  of  the  representative  to  alienate  personal  assets 
not  being  essentially  altered  thereby. 

The  Massachusetts  statute  provides  further  that,  for  the  pur- 
pose of  closing  the  settlement  of  the  estate,  a  probate  court 
may,  upon  petition  of  the  executor  or  administrator,  and  notice 
to  the  interested  parties,  license  a  sale  and  assignment  of  any 
outstanding  debts  and  claims  which  cannot  be  collected  with- 
out inconvenient  delay  ;  '  and  any  suit  for  the  recovery  of  a  debt 
or  claim  thus  sold  and  assigned  shall  be  brought  in  the  name  of 
the  purchaser,  and  the  executor  or  administrator  shall  not  be 
liable  for  costs. ^ 

Personal  property  of  the  deceased,  notwithstanding  such  stat- 
utes, is  commonly  sold  by  executors  or  administrators,  at  their 
own  discretion,  without  any  order  of  court ;  and,  if  the  repre- 
sentative acts  in  good  faith  and  sound  discretion,  the  interests 
of  no  person  concerned  can  be  injuriously  affected.^     The  sub- 


not  wait  for  a  judgment  to  be  had 
against  him  for  a  debt  justly  due,  in 
order  to  make  valid  the  title  of  a  pur- 
chaser of  property  sold  in  satisfaction 
of  the  debt.  Smith  v.  Pollard,  4  B. 
Mon.  67. 

Peculiar  delays  attending  the  settle- 
ment of  the  estate  such  as  might  arise, 
for  instance,  where  the  rights  of  those 
claiming  to  be  legatees  or  distributees 
were  in  litigation,  might  justify  the  pro- 
bate court  in  ordering  a  sale  of  personal 
property  on  the  representative's  appli- 
cation. Crawford  v.  Blackburn,  19  Md. 
40.  As  to  notice  of  the  intended  sale, 
see  Halleck  v.  Moss,  17  Cal.  339;  But- 
ler V.  Butler,  10  R.  I.  501.  As  to  post- 
ponement of  the  sale,  see  Lamb  v. 
Lamb,  Spears  (S.  C.)  Ch.  289. 

The  purchaser  should  see  that  the 
representative  makes  his  sale  according 
to  the  statute  or  judicial  order.  Fam- 
bro  V.  Gautt,  12  Ala.  305.  Mere  irreg- 
ularities in  pursuing  an  order  of  sale 
are  sometimes  cured  by  the  court's  con- 
tirmation  of  the  sale.  Jacob's  Appeal, 
23  Penn.  i=!t.  477.  Some  statute  formal- 
28  43 


ities  may  be  merely  directory  and  not 
imperative.  Martin  v.  McConnell,  29 
Ga.  204.  Where  the  sale  was  invalid 
by  reason  of  irregularity,  another  sale 
may  be  made  without  getting  a  new 
order  to  sell  from  the  probate  court. 
Robbins  v.  Wolcott,  27  Conn.  234.  A 
sale  made  under  a  void  judicial  order, 
and  dependent  on  a  judicial  order  for 
its  validity,  is  absolutely  void.  Beene 
V.  Collenberger,  38  Ala.  647  ;  Michel, 
Succession  of,  20  La.  Ann.  233.  See 
further,  Libby  v.  Christy,  i  Redf.  (N.Y.) 
465. 

The  purchaser  at  the  representative's 
sale  should  on  discovery  of  irregulari- 
ties elect  promptly  whether  to  repudiate 
the  transaction  or  not,  and  act  consist- 
ently with  his  election.  Joslin  v.  Caugh- 
lin,  30  Miss.  502. 

'  Mass.  Pub.  Stats,  c.  133,  §  4.  A 
similar  authority  is  exercised  by  the 
probate  court  in  Louisiana  practice. 
Pool,  Succession  of,  14  La.  Ann.  677. 

2  Mass.  Pub.  Stats,  c.  133,  §  5. 

3  Harth  7'.  Heddle.stone,  2  Bay  (S. 
C.)    321;    Mead    v.    Byington,     10    Vt. 


§   347  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

sequent  approval  of  the  court,  moreover,  appears  practically 
equivalent  to  a  previous  order.  The  executor  or  administrator, 
however,  makes  a  sale  at  his  own  risk,  where  such  an  order  is 
not  previously  obtained  ;  and  the  advantage  of  procuring  one  is 
apparent,  where  it  is  probable  that  the  property  cannot  be  sold 
for  its  appraised  value  and  the  administration  may  be  greatly 
affected  by  the  amount  realized  ;  for,  complying  with  the  terms 
of  his  order,  the  executor's  or  administrator's  responsibility  is 
limited  to  duly  accounting  for  the  proceeds  of  the  sale.  ' 

The  purchaser  at  a  sale  ordered  by  the  probate  court  acquires 
a  good  title,  unless  chargeable  with  notice  that  the  order 
was  improperly  procured,  by  misrepresentation  to  the  court  or 
otherwise  ;  consequently  the  transfer  of  his  own  bona  fide  title 
will  be  good.^ 

§  347.  Authority  to  sell  or  transfer  or  buy  as  affected  by  Ejc- 
pressions  in  the  Will.  —  An  executor's  authority  to  sell  and  trans- 
fer personal  property  may  be  confirmed  or  enlarged  by  a  power 
of  sale  clause  contained  in  his  testator's  will ;  ^  such  clauses  re- 
lating usually,  however,  in  expression,  to  the  testator's  real  estate 
or  to  his  property  generally  ;  and  so,  doubtless,  directions  con- 
tained in  a  will  may  qualify  or  restrain  the  executor's  general  power 
to  transfer  the  assets.'*  Upon  a  testator's  general  direction  to  sell 
and  distribute,  the  executor  is  the  proper  person  to  sell,  unless 
some  one  else  is  pointed  out  by  the  will.s  WTiere  a  testator 
shows  by  his  will  that  he  intends  to  intrust  his  personal  repre- 
sentative with  the  power  of  disposal,  and  of  receiving  and  apply- 

116;  Sherman  v.  Willett,  42  N.  Y.  146;  is  shown.     Price  v.  Nesbit,    i    Hill  (S. 

Smith  (Mass.)  Prob.  Pract.  1 10.  C.)  Ch.  445. 

'  Smith  Prob.  Pract.   no;  Redf.  (N.         ^  Smyth e^.  Taylor,  21  111.  296;  Dugan 

Y.)  Surr.  Pract.  237;   Williams  v.  Ely,  v.  Hollins,  11  Md.  41  ;  Durham,  Estate 

13  Wis.  I  ;  Munteith  z\  Rahn,   14  AVis.  of,  49  Cal.  491. 
210.  ^  Evans    v.    Evans,     i     Desau.    515. 

*  Pulliam  V.  Byrd,  2  Strobh,  Eq.  134 ;  Whether  the  executor  may  not  sell  or 

Knight  V.    Yarborough,  4   Rand.    566.  pledge  personal  assets  for  the  payment 

The  sale  by  an  executor  or  administra-  of  debts  notwithstanding  the  will  has 

tor  under  a  judicial  order   carries  the  provided  a  particular  fund,  see  Tyrrell 

legal  title,  and  will  be  presumed  to  have  v.  Morris,  i  Dev.  &  B.  Eq.  559. 
been  in  good  faith,  unless  the  contrary         '  McCollum    v.   McCollum,    t,->,    Ala. 

711. 

434 


CHAP.   IV.]     representative's    POWER    TO    SELL,    ETC.  §    348 

ing  the  proceeds,  the  purchaser  or  the  transferee,  for  security, 
is  not  bound  to  see  to  the  application  of  the  money  raised.'  A 
power  of  sale,  out  and  out,  and  having  an  object  beyond  the 
raising  of  a  particular  charge,  does  not,  however,  authorize  a 
transfer  by  way  of  pledge  or  mortgage.-  Yet  such  power  may 
be  given,  and  may  even  extend  to  purchases  on  credit  for  the 
estate.^ 

Powers  under  a  will  should  be  construed  according  to  their 
true  intendment.  But,  while  English  equity  courts  appear 
sometimes  to  have  created  artificial  distinctions  to  the  hazard  of 
the  transferee,  in  respect  of  the  application  of  proceeds,  the 
general  doctrine  favored  in  this  country  is,  that  a  purchaser  or 
transferee  who,  in  good  faith,  pays  or  advances  to  the  person 
authorized  by  the  will  to  transfer,  need  not  look  to  the  applica- 
tion of  the  proceeds  of  the  transaction  by  that  person. •» 

§  348.  Consulting  Parties  in  Interest,  as  to  the  Time,  Manner, 
etc.,  of  Sale.  —  The  judgment  of  residuary  legatees  or  distribu- 
tees may  be  of  importance  in  aiding  the  representative's  discre- 
tion as  to  the  time,  place,  and  manner  of  sale.  He  is  not  bound 
to  act  upon  the  judgment  of  one  or  all  of  such  parties  ;  but  to 
ascertain  and  act  upon  the  wishes  of  the  majority  of  benefici- 
aries in  interest  may  often  be  convenient  where  the  fiduciary's 
own  responsibility  is  a  dehcate  one.' 

Thus,  a  sale  which  the  representative  makes,  with  the  written 
assent  of  all  legatees  or  distributees  of  the  estate,  is  in  effect 
their  sale  as  well  as  his,  and,  if  made  in  good  faith,  ought  to 
bind  strongly.^ 

'  Stronghill  v.  Anstey,  i  De  G.  M.  &  hill  v.  Anstey,  i   De  G.   M.   &  G.   635 

G.  635 ;  Green,  Re,  37  N.  J.  Eq.  254.  (Am.  ed.)  and  note  by  Perkins.     As  to 

^  lb.  a  court's  power,  see  88  Ind.  1. 

^  Willis  V.  Sharpe,  113  N.  Y.  586,  (as  A  power  to  sell,   conferred  by  will, 

to  continuing  the  decedent's  business),  may  be  exercised  by  the  administrator 

And  see  §§  325,  326.  dc  bonis  non  with  will  annexed.     1S5 

*  Andrews   v.    Sparhawk,    13     Pick.  Penn.  St.  279;  contra  171  111.  229. 

393;  Cadbury  v.  Duval,    10   Penn.  St.  'See    Marsden  v.   Kent,   25   W.    R. 

265 ;    Gardner   v.    Gardner,    3    Mason,  522 ;  §  332. 

178,  2i(), per  Mr.  Justice  Story;  Strong-  '  Geyer  v.  Snyder,  140  N.  V.  394. 

435 


§  350 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


5;  349.  Representative  may  pledge  or  mortgage  Assets  instead 
of  selling.  —  The  general  right  of  disposition  and  transfer  involves 
the  right  to  transfer  in  baihiient  as  well  as  by  sale.  If  an  exec- 
utor or  administrator  may  advance  funds  of  his  own  to  pay  the 
debts  of  the  estate,  so  might  it  be  judicious  to  raise  money  for 
discharging  the  immediate  demands  of  the  administration  by 
pledging  or  mortgaging  assets,  and  avert  the  necessity  of  an 
immediate  sale  of  chattels  at  a  sacrifice,  or  to  anticipate  the  re- 
ceipt of  income  or  other  assets  likely  to  be  realized  later.  In 
fact,  the  great  weight  of  authority,  English  and  American,  is  to 
the  effect  that,  unless  positively  restrained  by  statute  or  the  par- 
ticular will,  the  representative  of  the  deceased  may  mortgage  or 
pledge  the  personal  assets,  or  part  of  them,  as  well  as  alienate ; 
the  general  presumption  being  that  one  does  so,  as  he  well 
might,  in  the  course  of  a  prudent  administration."  And  if  the 
will  confers  ample  powers,  all  the  more  surely  is  his  discretion 
to  be  respected.' 

§  350.  Bona  Fide  Purchaser,  Pledgee,  etc.,  not  bound  to  see  to 
Application  of  what  he  pays  or  advances.  —  As  a  general  princi- 
ple, it  is  not  incumbent  on  either  a  purchaser  or  a  transferee 
upon  securit}',  to  see  that  the  money  he  pays  or  advances  is 
properly  applied,  although  he  knew  he  was  dealing  with  an  ex- 
ecutor or  administrator  ;  and  simply  because  the  executor  or  ad- 
ministrator may  be  presumed  to  exercise  properly  his  large  dis- 
cretion to  dispose  of  personalty  belonging  to  the  estate.^  Hence, 
the  equities  of  a  bona  fide  transferee,  without  due  notice  of  a 
fraud  upon  the  estate,  are  respected  ;  though  this  does  not  by 
intendment  enlarge  the  legal  powers  of  the  representative,  nor 
give  a  colorable  sanction  to  misconduct  on  his  part. 


'  Scott  V.  Tyler,  2  Dick.  712;  Wms 
Exrs.  934;  Mill  V.  Simpson,  7  Yes.  152 
Vane  v.  Rigdon,  L.  R.  5  Ch.  663;  Mc 
Leod  V.  Drummond,  17  Ves.  154;  Shaw 
V.  Spencer,  100  Mass.  392 ;  Carter  v. 
Manufacturers'  Bank,  7 1  Me.  448 
Smith  V.  Ayer,  10  r  U.  S.  Supr.  320 
Wood's  Appeal,  92  I'enn.  St.  379 
Goodwin  v.  American  Bank,  48  Conn 


550.  But  see  Ford  v.  Russell,  i  Freem. 
(Miss.)  Ch.  42. 

'  See  §  347- 

^  Supra,  §  347  ;  Hill  v.  Simpson,  7 
Ves.  152;  Field  v.  Schieffelin,  7  Johns. 
Ch.  150;  Scott  V.  Taylor,  2  Dick.  725; 
McLeod  V.  Drummond,  17  Ves.  154; 
Shaw  V.  Spencer.  100  Mass.  392 ;  Jones 
V.  Clark,  25  Gratt.  642. 


436 


CHAP.    IV.]     representative's    POWER    TO    SELL,    ETC.  §    35  I 

Nor  with  reference  to  the  office  of  executor  or  administrator 
does  the  same  rule  of  caution  apply  as  in  the  case  of  a  trustee  ; 
the  latter  takes  property  rather  for  custody  and  management 
for  his  cestuis  que  trust,  but  the  former  for  administration  and 
a  sort  of  dispersion  of  the  assets.  Hence,  it  might  be  perilous 
to  buy  trust  funds  or  loan  money  on  their  pledge,  where  notice 
of  a  trust  accompanied  the  transaction,  while  a  sale  or  pledge  of 
personal  assets  by  the  representative  would  stand  because  he  is 
presumed  to  have  the  right  to  transfer." 

The  more  conservative  expression  of  some  cases,  however,  is 
that  the  legal  representative  can  dispose  of  the  personal  assets 
of  the  decedent  for  all  purposes  connected  with  the  discharge  of 
his  duties  as  representative  ;  and  that  even  where  the  transfer 
upon  security  is  made  for  other  purposes  of  which  the  pledgee 
or  mortgagee  has  no  notice  or  knowledge,  but  takes  the  prop- 
erty for  the  ostensible  purpose  in  good  faith,  parting  with  his 
own  accordingly,  the  transaction  will  be  sustained  ;  ^  a  statement 
which  certainly  is  not  too  strong.  For  the  transferee  of  per- 
sonal property  from  an  executor  or  administrator,  whether  by 
way  of  purchase  or  security,  is  not  bound  to  see  to  the  applica- 
tion of  the  proceeds  received  from  him,  but  may  assume  that 
they  will  be  properly  applied  ;  ^  at  the  same  time  that  notice  on 
his  part  of  an  intended  misapplication  by  the  representative, 
should  put  him  on  his  guard. '• 

§  3  5  I  •  Letters  Testamentary  or  of  Administration  are  Creden- 
tials of  Authority  to  transfer,  etc.  —  Letters  of  administration  or 
letters  testamentary  are  commonly  regarded  as  sufficient  evi- 
dence of  authority  to  transfer  stock  or  registered  bonds,  or  as- 
sign and  collect  bank  deposits  and  other  incorporeal  personalty  ; 
because  all  such  transfers,  assignments,  or  collections  are  within 

'  Duncan  v.  Jaudon,   15   Wall.   165;  ^  Smith  v.  Ayer,  loi  U.  S.  Supr.  320, 

Shaw  V.  Spencer,  100  Mass.  382  ;  Bay-  327. 

^xAv.  Farmers'  Bank,  52  Penn.  St.  232  ;  *  Gottberg  z'.  U.  S.  Bank,  131  N.   V. 

Perry  Trusts,  §  225.  595  ;  §  352. 

^  Smith  V.  Ayer,  loi  U.  S.  Supr.  320, 
329,  per  Mr.  Justice  Field. 

437 


§35  2  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

the  line   of   an   executor's  or  administrator's    duty.'     Not   so 
plainly,  however,  with  a  trustee's  letters.^ 

§  352.  Good  Faith  and  Caution  requisite  from  Purchaser,  Pledgee, 
etc.,  in  dealing  with  Personal  Representative.  —  As  to  sale  or 
transfer  upon  security,  however,  Hmitations  are  imposed,  not 
upon  the  legal  representative  alone,  whose  mismanagement  of 
his  trust  may  be  visited  upon  him  and  his  bondsmen  apart,  but 
likewise  upon  the  purchaser,  pledgee,  or  mortgagee,  who  has 
dealt  with  him,  and  whose  interest  consists  in  having  the  trans- 
action upheld.  As  to  these  third  parties  the  law  exacts,  on 
their  part,  perfect  good  faith  in  the  transaction,  and  freedom 
from  all  improper  collusion  for  perverting  the  assets.  Wher- 
ever, therefore,  the  purchaser,  pledgee,  mortgagee,  or  other 
transferee,  takes  assets  and  accepts  their  transfer,  for  what  one 
may  reasonably  suppose  is  outside  the  scope  of  the  representa- 
tive authority,  he  is  bound  to  look  into  that  authority  or  he  will 
act  at  his  peril.-'  And  any  person  receiving  from  an  executor 
or  administrator  the  assets  of  his  testator  or  intestate,  knowing 
that  such  disposition  of  them  is  in  violation  of  his  duty,  is  to  be 
adjudged  as  conniving  with  such  representative,  and  is  respon- 
sible for  the  property  thus  received,  whether  he  be  one  kind  of 
transferee  or  another ;  and  the  assets  may  be  followed  and  re- 
covered for  the  benefit  of  the  estate.'*  Notice  of  the  misappli- 
cation involves  the  transferee  as  a  participator  in  the  fraud  ;  and 
there  are  numerous  authorities  to  support  the  doctrine  that 
where  one  has  reasonable  grounds  for  believing  that  the  execu- 
tor or  administrator  intends  to  misapply  such  assets  or  their 
proceeds,  or  is  in  the  very  transaction  converting  them  to  pri- 
vate uses,  such  party  can  take  no  advantage  from  the  transac- 
tion, and  the  title  he  has  acquired  cannot  be  upheld. 5 

'  Bayard  7'.  Farmers' Bank,  52   Penn.  G.  633;   Ilutchins   ;•'.   State    Bank,    12 

St.  232.  Met.  423 ;  Mr.  Justice  Field  in  Smith  v. 

^  Duncan  v.  Jaudon,  and  other  cases,  Ayer,    loi    U.   S.    Supr.   328 ;  Field  v. 

supra.  Schieffelin,  7  Johns.  Ch.  150, /iv  Chan- 

'  Smith  t'.  Ayer,  101  U.  S.  Supr.  327  ;  cellor    Kent;  Miller   v.    Williamson,    5 

Gottberg  v.  U.  S.  Bank,  131  N.  Y.  595.  Md.  219  ;  Verger  v.  Jones,  16  Mow.  30 

■•  Smith  V.  Ayer,  loi  U.  S.  Supr.  327.  Lowryz/.  Commercial  Bank,  Taney  C.  C 

'  McLeod    r'.    Drummond,    17     Ves.  310;  Graff  z/.  Castleman,  5  Rand.  195. 
153  ;  Collinson  Z'.  Lister,  7  De  G.  M.  & 


CHAP.   IV.]     representative's    POWER    TO    SELL,    ETC.  §   353 

§  353-    Disposal   of   Chattels   Real;   assigning  and  underletting 
Leases.  — The  executor  or  administrator  may,  by  virtue  of  his 


A  sale  or  pledge,  therefore,  of  assets, 
which  is  known  to  be  for  the  payment 
or  security  of  the  executor's  or  adminis- 
trator's own  private  debt  is  invalid  ;  for 
the  act  speaks  for  itself  to  the  purchaser 
or  pledgee  as  a  breach  of  duty.  Carter 
V.  Manufacturers'  Bank,  71  Me.  448; 
Scott  V.  Searles,  15  Miss.  498;  Smartt 
V.  Watterhouse,  6  Humph.  158;  39 
Hun,  394.  It  appears  to  have  been 
laid  down  in  some  of  the  earlier  cases 
that  the  executor's  sale  of  assets  in  sat- 
isfaction of  his  own  private  debt  is  not 
necessarily  invalid,  although  the  pur- 
chaser knew  that  the  goods  sold  were 
the  goods  of  the  testator.  Farr  v. 
Newman,  4  T.  R.  642.  But  even  in  the 
common-law  courts  the  qualifications 
asserted  were  such  as  almost  to  neutral- 
ize the  doctrine.  See  Wms.  Exrs.  937. 
In  equity,  however,  it  has  since  become 
clearly  established  that  to  make  sale  of 
the  assets  or  pledge  them  as  security 
for  the  representative's  private  debt  is 
per  se  notice  of  misapplication,  and  in- 
volves the  purchasing  or  pledge  cred- 
itor in  the  fraud.  Wms.  Exrs.  937,  and 
Perkins's  note.  And  such  is  now  the 
general  English  and  American  rule  on 
this  subject.  lb.  And  though  the  rep- 
resentative might  give  his  own  note  as 
a  voucher  for  money  obtained  for  a 
legitimate  purpose  connected  with  a 
bona  fide  administration,  and  pledge  as- 
sets to  secure  it ;  yet  if  he  gave  it  for 
some  private  debt  of  his  own,  created 
before  or  during  his  trust,  but  inde- 
pendently of  it,  and  due  the  pledgee, 
the  pledge  transaction  could  not  stand. 
See  Virgin,  J.,  in  Carter  v.  Manufac- 
turers'Bank,  71  Me.  448.  A  sale  which 
allows  the  purchaser  to  credit  the  price 
in  liquidation  of  the  representative's 
private  debt  has  been  considered,  if  not 
avoided,  as  leaving  the  purchaser  still  re- 
sponsible to  the  estate  for  the  purchase- 


money.  Chandler  v.  Schoonover,  14 
Ind.  324.  A  purchase  of  the  testator's 
effects  at  a  nominal  price,  or  at  a  fraud- 
ulent undervalue,  in  collusion  with  the 
representative,  renders  the  purchaser 
liable  for  the  full  value ;  or,  at  the  op- 
tion of  those  interested,  the  transfer 
may  be  set  aside.  Rice  v,  Gordon,  1 1 
Beav.  265 ;  Wms.  Exrs.  936 ;  Sacia  v. 
Berthoud,  11  Barb.  15.  And  where 
parties  dealt  with  an  executor,  who  was 
obviously  exercising  his  power  to  dis- 
pose of  the  personal  assets  to  raise 
money,  not  immediately  for  the  settle- 
ment of  the  estate,  but  for  the  business 
of  a  commercial  firm,  it  was  lately  held 
that  they  were  bound  to  look  into  his 
authority  under  the  will  before  purchas- 
ing such  assets  or  loaning  money  on 
their  pledge ;  and  that  not  having  done 
so,  their  title  failed,  the  transaction  be- 
ing impeached  on  behalf  of  the  estate 
as  fraudulent.  Smith  v.  Ayer,  loi  U.  S. 
Supr.  320.  And  see  Salmon  v.  Clagett, 
3  Bland,  125  ;  Le  Baron  v.  Long  Island 
Bank,  53  How.  (N.  Y.)  Pr.  286. 

Where,  too,  the  representative  mort- 
gages personal  property  of  the  deceased 
for  purposes  which  the  mortgagee,  un- 
der the  circumstances,  is  notified  are  a 
fraud  upon  the  estate,  the  mortgage  may 
be  avoided  on  behalf  of  those  interested 
,  in  the  estate  and  aggrieved  thereby. 
Salmon  v.  Clagett,  3  Bland,  125;  Colt 
V.  Lesnier,  9  Cow.  320;  Wilson  v.  Dos- 
ter,  7  Ired.  Eq.  231  ;  Parker  v.  Gilliam, 
10  Yerg.  394.  In  a  word,  "those  who 
receive  trust  property  from  a  trustee  in 
breach  of  his  trust  become  themselves 
trustees  if  they  have  notice  of  the  trust." 
"  This  general  doctrine,"  observes  Chap- 
man, J.,  in  Trull  v.  Trull,  13  Allen,  407, 
"  has  been  applied  to  a  great  variety  of 
cases." 

But  where  a  bank  in  good  faith  lent 
money  to  an  executor  upon  his  Individ- 


439 


§  353 


EXECUTORS    AM)    ADMINISTRATORS.  [pART   IV. 


office,  and  as  representative  of  the  deceased  entitled  to  chattels 
real,  assign  and  dispose  absolutely  of  the  leases  and  terms  for 
years,  whose  title  thus  devolves  upon  him  ;  subject,  of  course, 
to  the  usual  restrictions  imposed  upon  his  power  to  alienate.' 
This  power  to  assign  or  underlet  is,  however,  frequently  re- 
strained or  excluded  in  modern  times  by  the  original  terms  of 
a  lease,  so  that  the  lessor's  consent  is  made  a  prerequisite  ;  in 
which  case  it  becomes  a  question  of  construction  whether  an 
express  restraint  upon  alienation  or  underletting  shall  take  effect 
against  executors  or  administrators,  or  be  held  binding  only  upon 
the  lessee  personally.  If  the  executors  or  administrators,  as  well 
as  the  lessee,  are  named  in  the  proviso  or  covenant,  they  cannot 
assign,  underlet,  or  dispose  of  the  term  without  the  lessor's  per- 
mission ;  though  it  appears  otherwise,  where  such  representatives 
are  not  mentioned  in  the  covenant.^ 


ual  note,  secured  by  a  pledge  of  stocks 
belonging  to  the  estate,  and  upon  his 
statement  that  the  loan  was  for  the  pur- 
poses of  the  estate,  the  pledge  was  in  a 
recent  case  held  valid,  so  that  the  stock 
could  not  be  recovered  without  refund- 
ing the  loan.  Carter  v.  Manufacturers' 
Bank,  71  Me.  448.  Knowledge  of  the 
representative's  fraud  in  procuring  the 
loan  is  not  to  be  inferred  from  his  de- 
sire to  renew  and  continue  the  loan  for 
nearly  four  years.  Goodwin  v.  Ameri- 
can Bank,  48  Conn.  550.  And  where 
an  executor  pledged  stock  to  his  broker 
as  collateral  security  for  his  own  debt, 
and  the  broker  pledged  the  certificates 
to  a  third,  who  advanced  money  on 
them,  supposing  the  broker  to  be  the 
owner,  the  transfers  showing  on  their 
face  that  the  title  came  from  the  execu- 
tor, the  pledgee's  title  was  likewise  up- 
held with  deference  to  mercantile  usage. 
Wood's  Appeal,  92  Penn.  St.  379.  By 
commercial  usage,  the  court  here  ob- 
served, a  certificate  of  stock  accom- 
panied by  an  irrevocable  power  of  attor- 
ney, either  filled  up  or  in  blank,  is  in 
the  hands  of  a  third  person  presumptive 
evidence  of  ownership  in  the  owner ; 


and  where  the  party  in  whose  hands  the 
certificate  is  found  is  a  holder  for  value, 
without  notice  of  any  intervening  equity, 
his  title  cannot  be  impeached.  Wood's 
Appeal,  ib.,  citing  authorities.  For 
whatever  the  pledgor's  own  breach  of 
trust,  or  an  agent's  abuse  of  authority, 
one  who  confers  upon  another  by  a 
written  transfer  all  ihe  indicia  of  owner- 
ship of  property  is  estopped  to  assert 
title  as  against  a  third  person,  acquiring 
it  bona  Jide  for  value  ;  and  the  principle, 
reluctantly  perhaps  to  be  admitted  in 
the  settlement  of  a  dead  person's  estate, 
applies  undoubtedly  against  a  living 
owner. 

Purchaser's  title  under  sale  not  af- 
fected by  discovery  and  probate  of  a 
later  will.  Ellis  z-.  Davis,  109  U.  S.  485  ; 
27  Ch.  D.  220. 

'  Bac.  Abr.  Leases,  I.  7  ;  Wms.  Exrs. 
939;  Taylor  Landl.  &  Ten.  §  133.  See 
Drohan  v.  Drohan,  i  B.  &  B.  185; 
Keating  v.  Keating,  i  Lloyd  &  G.  133. 

^  Wms.  Exrs.  940-943,  and  cases  cited ; 
Roe  V.  Harrison,  2  T.  R.  425 ;  Lloyd 
V.  Crispe,  25  Taunt.  259.  And  see 
supra,  §  223. 


440 


CHAP.    IV.]      REPRESENTATIVk's    POWER    TO    SELL,    ETC.  §    354 

The  executor  or  administrator,  in  whom  leaseholds  become 
vested,  should  ordinarily  sell  and  assign  and  let  the  assignee 
take  the  risks  as  to  the  value  of  his  purchase.  In  some  cases 
an  underlease  from  the  representative  himself  will  be  supportetl, 
though  this  is  an  exceptional  mode  of  dealing  with  such  assets.' 
But  in  a  recent  English  case  it  is  held  to  be  ultra  vires,  and  a 
breach  of  trust  for  an  executor  or  administrator  to  grant  an 
underlease  of  leaseholds  of  his  testator  or  intestate,  with  an  op- 
tion of  purchase  to  be  exercised  by  the  sub-lessee  at  some  future 
time  at  a  fixed  price.^  The  proceeds  of  an  absolute  disposition 
of  the  lease,  or  the  rents  accruing  from  an  underlease,  or  any 
other  beneficial  enjoyment  of  the  premises,  become  assets  of  the 
estate  in  the  personal  representative's  hands. ^ 

§  354-  Restraints  upon  the  Power  to  dispose  of  Assets  as  con- 
cerns the  Representative  himself.  —  To  speak  of  limitations  upon 
the  representative's  power  to  alienate  and  transfer  the  personal 
assets,  more  particularly  as  they  affect  the  official  responsibility 
of  the  representative  himself  and  the  liability  of  the  sureties  on 
his  bond,  the  rule  is  that  he  must  not  sell,  pledge,  or  otherwise 
transfer  personal  property  belonging  to  the  estate,  except  it  be 
in  the  exercise  of  good  faith  and  reasonable  prudence,"*  for  the 
benefit  of  the  estate  and  without  perversion  of  the  assets  to  other 
purposes.  Though  wrongful  or  imprudent  transfer  may  pass  a 
good  title  to  the  transferee,  it  cannot  exonerate  the  representa- 
tive who  has  made  it  from  direct  responsibility,  as,  in  our  prac- 
tice, an  officer  subject  to  removal,  whose  bond  may  be  prosecuted 
for  the  benefit  of  those  suffering  in  interest  through  his  mal- 

'  Bac.  Abr.  Leases,  L  7  ;  Wms.  Exrs.  745.     And  see  post.   Part   VIL    as   to 

939.  dealings  with  real  estate. 

^  Oceanic  Steam  Nav.  Co.  v.  Suther-  A  grant  of  letters  obtained  by  sup- 
berry,  29  \V.  R.  113.  pressing  a  will  is  not  at  this  day  treated 

'  Bac.  Abr.  Leases,  I.  7  ;  Wms.  Exrs.  as  void   ab   initio.     See   supra,   §  160. 

939  ;  2  W.  Bl.  692;  Bank  v.  Dudley,  2  Hence  a  sale  of  leaseholds  by  such  an 

Pet.  492  ;  Taylor  Landl.  &  Ten.  §  133.  administrator  to  a  botia  fide  purchaser 

That  an  administrator  has  no  power  before  revocation  of  the  letters,  is  up- 

to  mortgage  leaseholds,  under  leases  not  held.     Boxall  jv.  Boxall,  27  Ch.  D.  220, 

containing  repairing  covenants,  in  order  distinguishing  2  Leo.  182. 
to  raise  money  for  repairing  the  prop-         •*  "  C>rdinary  prudence,"  according  to 

erty,  see   Ricketts  v.  Lewis,   20  Ch.  D.  the  American  rule;  less  than  this,  per 

441 


§   35  5  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

administration.'  In  some  States  it  is  laid  down  that  an  admin- 
istrator can  sell  only  to  pay  debts  and  make  distribution  ;  ^  and 
yet  in  connection  with  the  investment  and  reinvestment  of  funds 
not  needed  for  immediate  disbursement,  the  discretion  of  a  rep- 
resentative seems  rightfully  a  broader  one ;  and  whether  he  be 
executor  or  administrator,  the  true  criterion  appears  to  be  rather 
whether  he  exercised  reasonable  prudence  and  good  faith  under 
all  the  circumstances,  in  making  the  transfer.^ 

§  35  5-  Representative's  Liability  for  Negligence,  Fraud,  etc.,  in 
the  sale  of  Assets.  —  Delays  attending  the  sale  of  particular  assets 
may  not,  therefore,  be  inexcusable,  though  loss  or  depreciation 
in  value  should  result ;  provided  the  representative's  course  ap- 
pears to  have  been  honorable  in  intent  and  not  unreasonable.'' 
But  the  executor  or  administrator  is  bound  to  e.Kcrcise  due  and 
reasonable  care  and  diligence,  as  well  as  good  faith,  in  disposing 
of  assets,  as  to  the  time,  manner,  and  terms  of  the  sale  ;  more 
especially  where  he  acts  upon  his  own  responsibility,  without 
consulting  either  the  court  or  the  parties  in  interest. 5  For  the 
consequences  of  his  own  fraud,  in  connection  with  a  transfer, 
he  is  unquestionably  answerable,  on  the  usual  principles,  to  the 
innocent  parties  injured  thereby.''  The  time  and  method  chosen 
by  the  representative  for  making  a  sale  and  disposing  of  assets 
should  be  reasonable  under  all  the  circumstances.^  And  if  he 
act  under  judicial  directions,  he  must  comply  with  thcm.^  Where 
the  property  is  of  a  fluctuating  and  uncertain  character,  like 
speculative  stocks  and  securities  which  might  rise  or  fall,  post- 
poning their  disposition  to  the  period  when  it  becomes  strictly 

haps,   by  the    English    standard.       See  Orcutt    v.    Orms,    3   Paige,    459.     See 

supra,  %  315.  supra,  §315,  as  to  whether  the  stand- 

'  Overfield  v.  Bullitt,  i  Mo:  749.  ard  is  "  ordinary  "  or  "  slight  "  care  and 

^  Baines  v.  McGee,  9  Miss.  208.  diligence. 

3  Meadz'.  Byington,  10  Vt.  116;  Sher-         ''Skrine   v.   Simmons,    11    Ga.   401 

manz/.  Willett,  42  N.  Y.  146;   13  Allen,  Heath  v.   AUin,   i  A.   K.  Marsh.  442 

407.  Harrington    v.    Brown,    5    Pick.    519 

*Dugan  V.  Hollins,  11   Md.  41;  Mc-  Miles  v.  Wheeler,  43  111.   123;  Woods 

Rea  V.  McRea,  3  Bradf.   199;  Mead  v.  v.  North,  6  Humph.  309. 
Byington,  10  Vt.  116;  Stewart  v.  Stew-         ^Griswold  v.  Chandler,  5  N.  H.  492; 

art,  31  Ala.  207  ;  supra,  §315.  Mar.'sden  v.  Kent,  25  W.  R.  522. 

'  Griswold  V.  Chandler,  5  N.  H.  492  ;         "  McDonald,  Re,  4  Redf.  321. 

442 


CHAP.   IV.]     representative's    POWER    TO    SELL,    ETC.  §   356 

necessary  to  realize  such  assets  in  order  to  settle  the  estate,  is 
not  to  be  imputed  as  culpable  default,  provided  that  under  the 
circumstances  reasonable  prudence  and  good  faith  were  dis- 
played.' 

If  the  representative  fails  in  his  duty  in  these  or  other  re- 
spects, he  may  be  held  to  account  for  the  property  on  the  basis 
of  the  inventory  value,  or  perhaps  the  actual  loss  to  the  estate  ;  ^ 
but  if  he  does  his  whole  duty  with  fidelity  and  reasonable  care, 
he  cannot  be  charged  with  a  loss  or  depreciation  of  the  assets. 
A  failure  to  sell  and  dispose  of  personal  assets  does  not  neces- 
sarily impute  carelessness  to  the  executor  or  administrator,  but 
the  circumstances  should  be  considered.^ 

§  356.  The  same  Subject;  Obtaining  Payment  or  taking  Secu- 
rity for  the  Purchase-Money.  —  As  to  carelessness  or  bad  faith 
in  procuring  payment  or  taking  or  enforcing  security  for  the 
purchase-money,  the  same  doctrine  applies.  Thus,  where  the 
representative  sells  personal  property  by  order  of  court,  with 
credit  to  be  given  on  specified  security  for  the  purchase-money, 
but  allows  the  purchaser  to  carry  away  the  property  without 
giving  such  security,  and  the  security  cannot  afterwards  be 
obtained,  this  is  culpable  negligence  on  his  part,  and  he  must 
answer  to  the  estate  for  the  loss.-*  For  in  making  a  sale  under 
judicial  directions,  he  cannot  safely  disregard  the  terms  pre- 
scribed. Indeed,  a  sale  of  assets  made  on  credit,  and  without 
taking  security  of  any  sort  from  the  purchaser,  can  rarely  be 
considered  a  prudent  transaction  on  the  part  of  a  fiduciary,  so  as 

'  Marsden  v.  Kent,  25  W.  R.  522.  512;  Masseyz-.  Cureton,  i  Cheves,  181  ; 

^Griswold  V.  Chandler,  5  N.  H.  492  ;  Betts  v.  Blackwell,  2   Stew.  &   P.  373; 

Pinckard  ^A  Woods,  8  Gratt.  140.  Davis    v.    Marcum,  4    Jones  Eq.    189; 

^McRae  v.  McRae,  3  Bradf.  199.  Peay  z'.  Fleming,  2  Hill  Ch.  97  ;  South- 
Shipping  goods  in  good  faith,  to  be  sold  all  7'.  Taylor,  14  Gratt.  269.  But  inci- 
abroad  instead  of  in  the  home  market,  dental  delays  or  omissions  in  connection 
does  not  necessarily  charge  the  repre-  with  security  are  not  necessarily  culpa- 
sentative  with  the  loss  ensuing,  his  ble.  Gwynn  v.  Dorsey,  4  Gill  &  J.  453. 
course  not  being  imprudent  in  itself,  On  failure  of  compliance  with  the 
though  resulting  unfortunately.  Bryan  terms  of  sale,  the  representative  may 
V.  Mulligan,  2.  Hill  (S.  C.)  Ch.  261.  sue  the  purchaser  at  once.     Peebles  v. 

*Hasbrouck  v.  Hasbrouck,  27  N.  Y.  Overton,  2  Murph.  384. 
182;  Vreeland  v.  Vreeland.  13  N.  J.  L. 

443 


§35  7  liXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 

to  exempt  him  from  the  risk  of  subsequent  loss.'  And  in  pursu- 
ing the  security  taken,  or  attempting  to  recover  property  trans- 
ferred, one  may  be  culpably  negligent,  or  the  reverse.^  Security 
taken  in  connection  with  a  transfer  of  the  assets,  by  the  rep- 
resentative, enures  properly  to  the  benefit  of  the  estate. ^ 

On  the  other  hand,  where  the  representative  takes  security 
or  a  note  for  the  purchase-money,  and  a  loss  occurs  not  attribu- 
table to  his  fault,  he  is  only  chargeable  with  the  amount  actually 
collected  and  realized. •♦  If  a  sale  be  made  on  credit,  it  is  not 
improper  to  receive  the  money  before  the  expiration  of  the 
credit.  5 

§  357-  Collusive  or  Fraudulent  Disposition  of  Assets  by  the 
Representative.  —  Where  an  executor  or  administrator  collusively 
sells  personal  property  of  his  decedent  at  an  undervalue,  when 
he  might  have  obtained  a  higher  price,  or  so  as  to  lose  the  price 
altogether,  it  is  a  devastavit,  and  he  shall  answer  for  the  real 
value.^  Or  if,  from  improper  motives,  he  procures  an  advanta- 
geous sale  to  be  set  aside  for  technical  reasons  against  the  pur- 
chaser's will  and  procures  resale  at  a  loss,  he  must  make  good 
the  loss. 7  And,  notwithstanding  the  form  of  a  judicial  or  a  pub- 
lic sale  was  pursued,  this  will  not  debar  a  court  of  equity  from 
examining  into  the  whole  transaction,  and  considering  whether 
there  was  a  collusive  .sale  to  defraud  the  estate  of  a  just  price.'* 

Where  there  is  any  collusive  and  fraudulent  dealing  with  the 
personal  assets  of  an  estate,  or  a  misappropriation,  not  only  a 
creditor,  but  a  legatee,  whether  general  or  specific,  or  a  distributee, 
is  entitled  to  follow  the  assets  in  equity.''     But  all  such  rights 

'  Orcutt     V.     Orms,  3      Paige,     459;  '  Q^yy,^j^  -,    Dor.sey,  4  Gill  &  J.  453. 

Stukes  V.  Collins,  Desau.  207  ;  Chand-  See  57  Cal.  407. 

ler  V.  Schoonover,  14  Ind.  324;  Dilla-  *"  Skrine   v.   Simmons,    11    Ga.    401. 

baugh'.s  Estate,  4  Watts,  177;  English  Heath  7'.  Alhn,  i  A.  K.  Marsh.  442. 

V.  Horn,  102  Ga.  770.  '  Mountcastle  v.  Mills,  11  Heisk.  267. 

-Johnston's  Estate,  9  W.  &  S.    107.  *  Skrine   v.    Simmons,    11    Ga.   401; 

And  see  §  323.  Heath  v.  AUin,  i  A.  K.  Marsh.  442.    As 

'See    Pulliam  v.   Winston,  5    Leigh,  to  the  fraudulent  pledge  or  mortgage  of 

324 ;  Napier  v.  Wightman,  Spears,  Ch.  assets,  see  supra,  §  352. 

357.  '  Hill  V.  Simpson,  7  Ves.  152  ;  Wilson 

♦  Stewart  v.  Stewart,  31  Ala.  207.  v.  Moore,  i  My.  &  K.  337  ;  Flanders  v. 

Flanders,  23  Ga.  249. 

444 


CHAP.   IV.]     representative's    POWER    TO    SELL,    ETC.  §    358 

must  be  enforced  within  a  reasonable  time,  considering  the 
opportunity  afforded  for  ascertaining  the  true  character  of  the 
transaction,  or  else  the  right  will  be  barred  by  their  presumed 
acquiescence.'  And,  in  American  probate  practice,  where  bonds 
are  given  by  the  fiduciary,  such  are  the  facilities  for  removing 
unfaithful  executors  and  administrators  and  appointing  their 
legal  successors,  that  adequate  remedies  at  law  for  recovering 
assets  improperly  transferred  may  frequently  be  found  without 
asking  a  court  of  equity  to  interpose.^ 

§  35  8.    Purchase  by  a  Representative  at  his  Own  Sale,  etc.  —  The 

earlier  and  more  conservative  rule  is,  that  an  executor  or  admin- 
istrator cannot  be  allowed  to  purchase  from  himself  any  part  of 
the  assets,  even  though  making  a  conduit  of  the  title  through 
some  third  person  ;  but  he  shall  be  considered  in  such  transac- 
tions a  trustee  for  the  persons  interested  in  the  estate,  and  shall 
account  for  the  utmost  extent  of  advantage  made  by  him  of  the 
subject  so  purchased.^  And  hence,  a  sale  by  the  representative 
to  himself  of  personalty  belonging  to  the  estate,  has  been  treated 
as  fraudulent  per  se  and  void,  even  though  made  at  public  auc- 
tion at  a  fair  price,  a  third  person  being  the  nominal  bidder  to 
whom  the  immediate  transfer  is  made.-*  But  the  preponderance 
of  American  decisions  tends  rather  to  the  conclusion  that  a  pur- 
chase of  assets  by  the  executor  or  administrator,  or  his  taking 
and  accounting  for  the  same  at  their  appraised  value,  may  often 
be  really  advantageous  to  the  estate,  and  that  such  advantage  is, 
after  all,  the  main  thing  to  be  considered.  They  hold  that,  at 
all  events,  a  purchase  by  the  representative  is  not  absolutely 
void,  but  voidable  only  by  persons  interested  in  the  estate  at 
their  option  ;  5  nor  even  by  these  if  they  have  directly  sanctioned 

'  Wms.  E.xrs.  938;  Elliott  ?'.  Merri-  ■•  lb.;  Miles  z/.  Wheeler,  43  111.   123; 

man,  2  Atk.  41  ;  McLeod  v.  Drummond,  Ely  v.  Horine,  5  Dana,  398  ;  Sheldon  v. 

i4Ves.  353;  17  Ves.   152;  Flanders  v.  Rice,  30  Mich.  296. 

Flanders,  23  Ga.  249.  ^  Harrington  v.  Brown,  5  Pick.  519; 

^  See   Mawhorter   v.    Armstrong,    16  Mercer  v.  Newson,  23  Ga.  151  ;  Ander- 

Ohio,  188;  Hart  v.  Hart,  39  Miss.  221.  son  v.  Fox,  2  Hen.  &  M.  245;  McLane 

'  Hall  V.  Hallett,   i  Cox,   134;  Wat-  v.  Spence,  6  Ala.  894  ;  Blount  v.  Davis, 

sonz/.  Toone,  6  Madd.  153;  Wms.  Exrs.  2   Dev.    19;  Mead  t'.  Byington,   10  Vt. 

938  ;   1 13  N.  C.  270.  116;  Ives  t.  Ashley,  97  Mass.  198  ;  Gil- 

445 


§   358  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

or  acquiesced  in  the  transaction,'  or  if,  from  their  laches  and 
delay,  acquiescence  on  their  part  may  legally  be  fairly  inferred 
to  the  quieting  of  title.^  The  sale  will  be  treated  as  essentially 
valid  until  avoided  ;  ^  and,  while  any  party  interested  may  apply 
to  have  the  sale  set  aside,  notwithstanding  the  acquiescence  of 
the  others,  it  is  not  for  a  stranger  to  exercise  any  option  in  the 
matter.-* 

The  representative,  moreover,  who  has  advanced  his  own 
funds  to  pay  debts  of  the  decedent,  is  allowed  to  retain  any  spe- 
cific article  at  a  fair  valuation,  and  his  purchase  at  the  sale  may 
be  treated  as  evidence  of  his  election  accordingly. ' 

A  purchase  by  the  representative  at  his  own  sale  must,  how- 
ever, in  order  to  stand  assault,  be  in  the  interest  of  the  estate. 
If  it  appear  that  he  purchased  the  property  at  less  than  its 
value,  has  never  accounted  for  the  proceeds,  and  is  insolvent, 
chancery  will  set  the  sale  aside,  not  only  as  against  him,  but  as 
against  purchasers  under  him  with  notice.^  Where  an  execu- 
tor or  administrator  purchases  at  his  own  sale,  he  may  be  held 
accountable  for  all  the  profits  of  the  transaction  ;  and  if  the  to- 
tal profit  be  uncertain,  he  is  chargeable  with  the  largest  amount 
presumable."  And  if  he  purchase  personalty  of  the  deceased, 
though  at  public  auction,  at  a  less  price  than  the  appraised  value 
in  the  inventory,  he  may  be  held  to  account  for  the  difference  ;** 


bert's  Appeal,  78  Penn.  St.  266 ;  Moses  '  Ely  v.  Horine,  5  Dana,  398.     See 

V.  Moses,  50  Ga.  9;  Staples  v.  Staples,  i  Desau.  150. 

24  Gratt.  225  ;  57  Fed.  873.  And  see  The  mere  fact  that,  long  after  an  ad- 
Sheldon  V.  Rice,  30  Mich.  296;  Mon-  ministrator's  sale  the  administrator  pur- 
roe's  Estate,  142  N.  Y.  484.  chased  the  property  from  the  purchaser 

'  Williams  v.   Marshall,  4  Gill.  &   J.  at  such  sale,  is  not  sufficient  proof  that 

376;   Lyon  ?■.  Lyon,  8  Ired.  201.  the   fiduciary  was  substantially  a  pur- 

^  Todd    7'.     Moore,     i     Leigh,    457  ;  chaser  at  his  own  sale  through  the  me- 

Flanders  ?■.  Flanders,  23  Ga.  249.     And  dium  of  another.     Painter  z'.  Henderson, 

see  Miller  v.  Binion,  33  Ga.  ^;^.  7  Penn.  St.  48. 

'lb.;  Dunlap  v.  Mitchell,   10  Ohio,  *  Sheldon    v.    Woodbridge,    2    Root 

117;  Wms.  Exrs.  938,  note  by  Perkins  ;  (Conn.)   473;    McCartney  v.  Calhoun, 

59  Mass.  185.  17  Ala.  301  ;  Lyon  v.  Lyon,  8  Ired.  L. 

*  Litchfield  v.  Cudworth,  15  Pick.  24;  201  ;  McKey  v.  Young,  4  Hen.  &   M. 

Jackson   v.   Vandalfsen,   5    Johns.  43 ;  430. 

Wms.   Exrs.    938,  Perkins's   note;   Lo-  'Brackenridge  z/.  Holland,  2   Blackf. 

throp  V.  Wightman,  41  Penn.  St.  297.  377. 

"Griswold  7/.  Chandler,  5  N.  H.  492. 
446 


CHAP.  IV.]    representative's  power  to  sell,  etc.        §  358 

but  the  true  valuation  of  the  property  should  be  considered.' 
In  general,  if  the  sale  be  not  avoided,  the  representative  is  charge- 
able, together  with  the  sureties,  on  his  bond,  for,  at  least,  the 
full  and  true  price  at  which  he  purchased  ;  ^  but  where  the  trans- 
action is  assailed  by  a  party  in  interest,  for  the  actual  value  of 
the  property  as  nearly  as  may  be.^  While  such  transactions 
may  not  be  positively  illegal,  they  justify  and  require  a  close 
scrutiny  into  the  good  faith  and  fairness  of  the  transaction  ;  be- 
ing liable  to  gross  abuses,  like  the  purchase  of  an  attorney  from 
his  client  or  a  guardian  from  his  late  ward.^ 

It  is  held  that  where  the  representative  himself  purchases  at 
his  sale  of  the  decedent's  estate,  and  uses  the  assets  of  the  es- 
tate in  making  such  purchase,  those  interested  may  elect  to 
consider  the  appropriation  a  conversion,  or  may  treat  him  as  a 
purchaser  in  trust  for  their  benefit. 5  Courts  incline  to  favor 
the  representative's  correction  of  an  inadvertent  purchase  by 
himself  at  his  sale  of  the  assets  ;  ^  but  the  representative  who 
made  the  sale  is  not  the  proper  person  to  avoid  the  transaction 
to  the  detriment  of  another's  interests  thereby  acquired.^ 

In  fine,  according  to  the  better  authorities,  a  purchase  by  the 
executor  or  administrator  at  his  own  sale,  either  directly  or  indi- 
rectly, will,  though  not  absolutely  void,  be  set  aside,  upon  the 
timely  application  of  any  party  interested  in  the  estate  ;  and  this 
rule  is  of  general  application  to  sales  of  trust  property.^     At  the 

'  Dudley  v.  Sanborn,  159  Mass.  185.  istrator  may  purchase  lands  of  his  intes- 

^  Raines  v.  Raines,  51  Ala.  237;  Mof-  tate  which  are  sold  under  the  foreclosure 

fat  V.  Loughridge,  51  Miss.  211.  of  a  mortgage;  for  the  administrator  is 

'See  Gilbert's  Appeal,  78   Penn.  St.  not  a  trustee  of  his  decedent's  real  es- 

266.  tate.     Dillinger  v.  Kelley,  84  Mo.  561  ; 

••Moses  V.  Moses,  50  Ga.  9.  Buying  Johns  v.  Norris,  7  C.  E.  Greene  (N.  J.) 
in  legacies  is  culpable  in  a  representa-  102.  Other^\^se,  however,  in  transac- 
tive. Goodwin  v.  Goodwin,  48  Ind.  tions  where  the  representative  is  really 
584.  a  trustee,  as  in  the  sale  of  land  for  the 

5  Julian  V.  Reynolds,  8  Ala.  680.    And  payment  of  debts, 
see,  as  to  assignment  of  stock  belong-         '^Bennett,    Ex  Parte,    10   Ves.   381  ; 

ing  to  the  estate,  to  the  representative  Davone  v.  Fanning,  2  Johns.  Ch.  253; 

personally,    Whitley  v.    Alexander,  73  Booraem  v.   Wells,    19  N.  J.   Eq.  87; 

N.  C.  444.  Lytle  v.  Beveridge,  58  N.  Y.  593.  Local 

*"  Cannon  v.  Jenkins,  i  Dev.  Eq.  422.  statutes  prohibiting  such  purchases  are 

'And  see  Part  W. post  as  to  sales  of  found.     84  Mo.  561. 
the  decedent's  real  estate.     An  admin-         An   ancillary    representative  will   be 

447 


§    360  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

same  time,  the  election  of  the  interested  parties  may  confirm 
the  sale.' 


ij  359.  Re-opening  the  Representative's  Voidable  Transfer,  etc.; 
Relief  as  against  Third  Parties.  —  Generally  speaking,  if  an  exec- 
utor or  administrator  sells,  mortgages,  or  pledges  any  of  the 
personal  property  of  his  decedent's  estate  in  payment  of  or  as 
security  for  his  individual  debt,  or  otherwise,  in  perversion  of 
his  trust,  every  person  who  receives  any  part  of  this  property, 
as  a  participator  in  the  representative's  breach  of  trust,  is  re- 
sponsible ;  and  the  assets  wrongfully  transferred  or  disposed  of 
may  be  reached  by  creditors,  legatees,  and  distributees  or  heirs. 
The  relief  afforded  for  the  fraud  and  damage  appears  to  be  an 
equitable  one  at  their  election  ;  no  adequate  or  complete  remedy 
existing  at  law,  or  none,  at  all  events,  where  the  representative 
and  his  sureties  are  worthless.-^ 

§  360.  Personal  Representative  cannot  avoid  his  ow^n  Voidable 
Transfer,  etc.  —  But  the  representative  cannot  avoid  his  own 
sale  or  pledge,  though  guilty  of  a  breach  of  trust  in  making  it. 
It  may  be  needful  and  proper  to  remove  him  from  the  trust  and 
appoint  another  ;  but  such  a  removal  is  not  for  the  purpose  of 

presumed  to  have  authority,  by  virtue  of  place  for  final  and  full  settlement  of  the 
his  office,  to  sell  a  note  and  mortgage  estate,  and  an  account  for  all  the  prop- 
belonging  to  the  estate,  in  the  absence  erty  and  effects  of  the  estate  wherever 
of  evidence  to  the  contrary.  But  where  found,  might  inquire  into  the  good  faith 
the  executor,  in  the  last  domicile  of  the  of  the  sale,  and  if  it  should  find  that  the 
decedent,  included  in  his  inventory  a  sale  was  fraudulent  and  the  executor 
note  due  to  his  testator  from  the  estate  the  real  purchaser  of  the  note,  could 
of  a  deceased  debtor  who  was  domi-  compel  him  to  account  for  the  excess  of 
oiled  in  another  State,  secured  by  mort-  the  value  of  the  note  above  what  he 
gage  on  land  in  that  State,  took  out  paid  for  it.  Clark  v.  Blackington,  no 
ancillary  administration,  sold  the  note  Mass.  369.  See  supra,  §  181. 
and  mortgage,  and  rendered  a  final  ac-  '  Cases  supra. 

count  to  the  probate  court  of  that  State,  ^  McLeod  v.  Drummond,  17  Ves.  153  ; 

which  was  there  allowed,  it    was  held  4  Brown,  C.C.  127,  139;  Bean  z/.  Smith, 

that  such  allowance  of  the  disposition  2    Mason,    271  ;    Monell    v.    Monell,    5 

made   by  him  of  the  proceeds  of  the  Johns.  Ch.   297;  Riddle  v.  Mandeville, 

note  was  conclusive  in  the  settlement  of  5  Cranch,   322;  Field  v.  Schieffelin,  7 

his  account  in  the  probate  court  of  last  Johns.  Ch.  150;  Dodson  v.  .Simpson,  2 

domicile  as  executor;  but  that  the  pro-  Rand.  294  ;  Thomas  v.  White,  3  Littell, 

bate  court   of  last  domicile,  being  the  180.     And  see  j///;rt,  §  297. 

448 


CHAP.   IV.]      representative's    POWER    TO    SELL,    ETC.  §    36 1 

reaching  the  assets  themselves,  but  preparatory  rather  to  hold- 
ing the  delinquent  representative  to  account,  and  suing  him  and 
his  bondsmen  for  maladministration.  If  the  unfaithful  repre- 
sentative dies  or  is  removed  in  fact,  and  a  representative  de 
bonis  non  is  appointed,  the  rule  is  that  the  latter  cannot  avoid 
the  wrongful  transfer  of  his  predecessor,  except  where  there  are 
local  statutes  in  force  authorizing  a  representative  de  bonis  non 
to  do  what  otherwise  creditors,  legatees,  or  distributees  could 
alone  have  done.' 

§  361.    Whether    the   Representative  warrants   Title   when    he 

sells.  —  Where  an  executor  or  administrator  sells  or  transfers 
personal  property  of  the  decedent,  there  is  an  implied  represen- 
tation to  the  purchaser  that  he  is  the  legal  representative  of  the 
estate,  and  has  general  authority  to  make  such  sale  or  transfer ; 
and,  should  it  prove  the  reverse,  the  purchaser  or  transferee 
may,  it  is  held,  be  relieved  from  the  contract  in  equity.^  Juris- 
diction in  the  premises,  regular  procedure  by  virtue  of  his  office, 
is  what  an  executor  or  administrator  warrants  by  impUcation. 
But,  in  sales  or  transfers  by  executors  or  administrators,  there 
is  no  implied  warranty  of  the  title  ;  and  the  purchaser  or  trans- 
feree acquires  only  the  decedent's  rights  in  the  property,  sub- 
ject to  his  incumbrances  ;  so  that,  in  the  absence  of  fraud  or  an 
express  warranty  on  the  representative's  part,  and  an  eviction, 
the  buyer  or  transferee  cannot  hold  him  personally  answerable 
nor  the  estate.^  Indeed,  the  purchaser  from  an  executor  or  ad- 
ministrator takes  the  risk  of  the  worthlessness  of  the  decedent's 
title ;  and  he  must  pay  the  price,  as  it  is  held,  even  though  that 
title  should  utterly  fail,  no  deceit  having  been  practised  upon 
him.-*     Where,   however,   the    purchase-money  remains  in   the 

'  Stronach  v.  Stronach,  20  Wis.  129,  his   title.     Beene   v.    Collenberger,    38 

133,    and    cases    cited;     Hagthorp    v.  Ala.  647 ;  Michel,  Succession  of,  20  La. 

Neale,  7  G.   &  J.  13;   Herron  v.   Mar-  Ann.  233. 

shall,  5  Humph.  443.     See  c.  6,  post.  ^  Mockbee  v.  Gardner,   2  Har.  &   G. 

^  Crisman  v.  Beasley,  i  Sm.  &  M.  Ch.  176. 

561;  Woods  V.  North,  6  Humph.  309.  ■•  Cagar    v.    Frisby,    36    Miss.    178; 

In  case  of  a  sale  under  a  void  judicial  Stanbrough  v.  Evans,  2   La.  Ann.  474. 

order,  the  purchaser  is  not  bound  to  But  see   White,  Succession  of,    9  La. 

pay  the  purchase-money  and  complete  Ann.  232.     A  fairer  rule  would  be,  that, 
29                                             449 


§    361  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

representative's  hands  still  undistributed,  it  is  equitable  and  just, 
as  other  cases  affirm,  that  the  representative  should  refund  to 
the  ]5urchaser  in  such  a  case.'  And  fraudulent  representations 
made  by  the  representative  at  the  sale  may  be  relied  upon  by 
the  purchaser  who  was  misled,  so  as  to  avoid  the  sale,  or  in 
abatement  of  the  price  agreed  upon.-  In  respect  of  warranty, 
therefore,  executors,  administrators,  and  other  trustees  consti- 
tute exceptions  to  the  familiar  rule  that  there  exists  in  every 
sale  of  personal  property  an  implied  warranty  of  title.  ^ 

But  even  here,  if  fraud  taints  the  transaction,  or  if  there  has 
been  an  express  warranty  and  eviction,  the  representative  makes 
himself  personally  liable  to  the  purchaser  for  the  consequences.'* 
It  becomes  a  question,  therefore,  whether  an  express  warranty 
which  the  representative  makes,  outside  the  usual  scope  of  his 
official  authority,  binds  the  estate  and  not  himself  alone.  Some 
courts  have  considered  that  the  representative  is  competent  to 
warrant  either  the  title  or  the  soundness  of  personal  property  of 
the  deceased  which  he  offers  to  sell,  so  that  if  the  transaction, 
as  between  the  purchaser  and  himself,  be  fair  and  bona  fide ^  the 

if  in  such  a  case  the  sale  has  not  been  "  would  accept  an  office  of  this  kind,  if 

completed  by  payment  of  the  money,  he    were    to    become    necessarily    the 

the  purchaser  need   not  pay  ;  but  at  all  guarantee  of  the  good  title  of  him  whom 

events,  he  cannot  hold  an  innocent  rep-  he  represents,  in  all  the  property  sub- 

resentative  personally  liable  should  the  mitted  to  his  charge  which  he  may  be 

title  fail ;   though   the  loss  might  here  obliged  by  order  of  the  court  to  sell .'' 

fall  properly  upon  the  estate.     The  in-  In  all  cases  in  which  the  title  sold  was 

demnity  of  the  representative  is  what  ascertained  to  be  defective,  after  a  final 

the  law  chiefly  insists  upon  in  such  in-  distribution  of  the  estate,  the  adminis- 

stances.  trator,  if  a  recovery  were  had  against 

'  Mockbee  v.  Gardner,  2  Har.  &  G.  him,  would  have  to  look  for  indemnity 

176.  to  creditors,  distributees,  and  legatees. 

^  Able  7'.  Chandler,  1 2  Tex.  88.  In  most  instances  his  prospect  of  se- 

^  See   2   Schoul.  Pers.  Prop.  §  320  et  curity  would  never  be  realized,  and  no 

seq.  as  to  warranty  in  sales ;  Chapman  power  is  given  him  to  retain  for  such  a 

V.    Speller,    14    Q.    B.   621  ;    Blood   v.  contingency." 

French,  9  Gray,  197  ;  Brigham  v.  Max-        The  representative  is  not  responsible 

ley,  15  111.  295;   Bartholomew  v.  War-  for  misrepresentations  by  others  which 

ner,  32  Conn.  98.     The  reason  for  this  he  did  authorize.     Newell  v.  Clapp,  97 

exemption  from  personal  responsibility  Wis.  104. 

is  derived  from  the  nature  of  the  office         *  Mockbee  v.   Gardner,   2  Har.  &  G. 

held  by  the  representative  or  trustee.  176;  Sumner  z/.  Williams,  8  Mass.  162; 

"For  who,"   observes    Archer,    J.,    in  Buckels  z/.  Cunningham,  14  Miss.  358; 

Mockbee  v.  Gardner,  2  Har.  &  G.   177.  Able  v.  Chandler,  12  Tex.  88. 

450 


CHAl'.    1\.J      representative's    POWER    TO    SELF.,    ETC.  5^    362 

warranty  will  obligate  the  estate  ;  or,  in  other  words,  that  the 
power  to  warrant,  on  his  part,  is  incidental  to  the  general  right 
to  sell,  pledge,  or  mortgage."  But  local  statutes  may,  upon  a 
fair  construction,  be  found  to  regulate  this  whole  matter.^  An 
estate  ought  not  to  profit  unjustly  where  prevention  may  be 
seasonable.^  Yet  it  would  appear  the  better  opinion  that  a  per- 
sonal representative  cannot  positively  bind  his  decedent's  estate, 
when  he  transcends  the  usual  limits  of  his  authority,  and  war- 
rants the  decedent's  title  absolutely  or  the  soundness  of  the 
thing  he  offers.'*  This  latter  rule,  though  sometimes  operating 
harshly,  is  found,  after  all,  the  most  convenient  for  facilitating  a 
prompt  and  equitable  settlement  of  the  estate ;  and  each  pur- 
chaser, being  put  on  his  own  guard  in  such  transactions,  should 
inquire  into  the  title  for  himself,  or  offer  a  less  price  in  consid- 
eration of  the  risk  he  runs.5 

v^  362.    Sales  of  Negotiable  Instruments  by  the  Representatives. 

^An  executor  or  administrator  has  a  right,  which  is  inherent 
in  the  office,  to  sell  or  otherwise  transfer  promissory  notes,  bills 
of  exchange,  or  other  negotiable  instruments  belonging  to  the 
decedent's  estate,  as  well  as  corporeal  chattels,  and  under  corre- 
sponding qualifications.''  For  his  authority  to  dispose  of  per- 
sonal property  extends  to  the  disposition  of  incorporeal  kinds 
and  their  muniments  of  title,  excepting,  perhaps,  for  those  com- 
mon-law barriers  against  assignment,  which,  in  modern  practice, 

"  Craddock  v.  Stewart,  6  Ala.  77,  80.  himself  by  getting  distributees  or  others 
An  administrator  may  warrant  the  in  interest  to  obligate  themselves  per- 
soundness  of  personalty  before  he  sells,  sonally  in  return  ;  or  they  may  them- 
Roltwood  V.  Miller,  112  Mich.  657,  and  selves  undertake  to  make  express  war- 
cases  cited.  ranty  to  the  purchaser. 

-  lb.     As   to   mortgages   where   one  The    representative   sometimes   sells 

sells  with  warranty,  see  3  Mason,  285 ;  with   authority  from   a  sole  legatee  or 

2  Whart.  420.  distributee.     See    Kelso   v.   Vance,   58 

'  Williamson  v.  Walker,  24  Ga.  257;  Tenn.  334. 

Crayton  v.  Munger,  9  Tex.  285.  "  Rawlinson    v.     Stone,    3    Wils.    i  ; 

■*  Ramsey   v.    Blalock,    34    Ga.    376 ;  Wms.  Exrs.  943 ;  Gray  v.  Armistead,  6 

Lynch  v.  Baxter,  4  Tex.  431.  Ired.  Eq.  74;  Rand  v.  Hubbard,  4  Met. 

■^  If  the  representative  seeks,  by  giv-  258;    Cleveland  v.    Harrison,    15    Wis. 

ing  express  warranty,  to  make  a  better  670.     And  see  Nelson  v.  Stollenwerck, 

sale  for  the  estate,  he  may  well  secure  60  Ala.  140. 


§   362  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

have  been  well-nigh  swept  away,"  And  the  purchaser  of  such 
instruments  in  good  faith  will  acquire  a  good  title,  even  though 
purchasing  at  a  discount,  unless  he  is  chargeable  with  collusive 
advantage  or  knowledge  of  a  fraudulent  perversion  on  the  rep- 
resentative's jjart.-  Should  the  representative  dispose  improp- 
erly of  such  assets  and  the  rights  thereunder,  he  may  be  ren- 
dered liable  on  his  bond  ;  }'et  this  will  not  affect  the  title  of  an 
indorsee,  assignee,  or  other  transferee  who  takes  the  instrument 
in  good  faith  and  for  value.^ 

But,  following  the  rule  elsewhere  noticed,  the  transfer  of  a 
note  due  to  the  estate  by  the  representative  in  payment  of  his 
own  debt,  or  as  security  for  it,  gives  to  the  transferee  with  notice 
no  right  of  recovery.-'  On  the  other  hand,  if  a  balance  be 
justly  due  to  the  representative  on  the  settlement  of  his  accounts, 
to  the  amount  of  the  negotiable  instrument,  it  is  no  fraud  in 
him  to  sell  and  appropriate  such  instrument  to  the  payment  of 
his  claim.5 

The  representative  may,  by  indorsement  or  the  other  usual 
means,  guarantee  payment  of  the  instrument  he  transfers ;  but 
by  doing  so  he  binds  himself  personally,  and  not  the  estate,^ 
and  consequently  the  form  of  assigning  or  indorsing  should,  as 
a  rule,  be  so  prudently  expressed  that  no  recourse  can  be  had 
either  against  him  or  the  estate  he  administers  upon.^ 

'  See  1  Schoul.  Pers.  Prop.  §§  71-86,  Scranton  v.   Farmers'  Bank,  24  N.  Y. 

as  to  the  old  distinction  between  cor-  424;  Scott    v.   Searles,    15    Miss.  498 

poreal  and  incorporeal,  or  c/ioses  in  pos-  Smartt  v.  Waterhouse,  6  Humph.  158 

session   and    choses  in  action,   with  the  Williamson  v.  Morton,  2   Md.  Ch.  94 

common-law  rule  of  assignment.  supra,  §  352. 

^  Gray  v.  Armistead,  6  Ired.  P:q.  74.         '  Ward   v.    Turner,   7    Ired.   Eq.  73. 
See  Munteith   v.   Rahn,   14    Wis.  210;  And  see  Rogers  t-.  Zook,  86  Ind.  237. 
§  357.  ^  Robinson  v.   Lane,   22    Miss.    161 ; 
3  Hough   V.    Bailey,   32    Conn.    288;  siipra,%2^%.     Generally  speaking,  there 
Wilson   V.    Doster,   7    Ired.    Eq.    231;  is  no  difference  between  an  indorsement 
Walker  v.  Craig,  18  111.  116;  Speelman  of  a  note  by  the  deceased  and  one  by 
V.  Culbertson,  15  Ind.  441.     Under  the  his  personal   representative.     Watkins 
codes  of  some  States,  the  rule  is  other-  v.  Maule,  2  Jac.  &  W.  243  ;  W'ms.  Exrs. 
wise.    Burbanki'.  Payne,  17  La.  Ann.15.  943.     For  a  case  of  incomplete  indorse- 
As  to  application  of  the  statute  of  ment  and  delivery  of  a  note  belonging 
limitations   to    such    transactions,   see  to  an  estate,  see  Bromage  v.  Lloyd,  i 
Cleveland   v.   Harrison,    15   Wis.  670 ;  Ex.32.     And  see  37  Miss.  526. 
next  chapter.  ^  £iy  ^    Williams,    13   Wis.   i.     See 
^Lutham  v.  Moore,  6  Jones  Eq.  167  ;  127  Mass.  174. 

452 


CHAP.  IV.]   representative's  POWER  TO  SELL,  ETC.     §  363 

As  the  representative  may  sell  and  dispose  of  a  note  or  other 
negotiable  instrument  belonging  to  the  estate,  so  may  he  dis- 
pose of  it  with  pledge  or  mortgage  security  accompanying  it, 
and  assign  and  transfer  accordingly.'  Even  a  mortgage  secured 
upon  real  estate  passes  with  the  principal  indebtedness  as  per- 
sonal property,  if  unforeclosed,  and  may  be  assigned  by  the 
representative.- 

An  executor  or  administrator  may,  under  proper  circum- 
stances, sell  a  negotiable  instrument  or  other  incorporeal  cJiose 
at  a  price  below  the  nominal  amount,  as  he  certainly  may  for  a 
price  above  it  ;  ^  for  the  pursuance  of  official  duty  with  integrity 
and  reasonable  prudence  is  here,  as  in  sales  of  things  corporeal, 
the  standard  by  which  his  transactions  should  be  tested. 

§  363.  Representative's  Authority  to  purchase.  —  The  power 
of  an  executor  or  administrator  to  purchase  follows  the  general 
doctrine  of  his  authority  to  sell,  invest,  and  re-invest. "♦  An  un- 
authorized purchase  is  voidable  at  the  election  of  those  in  inter- 
est. Under  the  circumstances  presented  in  some  particular 
transaction,  it  may  be  matter  of  inquiry  whether  the  purchase 
made  by  a  representative  was  on  his  individual  account  or  for 
the  use  of  the  estate  ;  and  here,  not  only  formal  instruments 
of  title,  but  also  the  means  of  payment  used,  and  the  advanta- 
geous or  disadvantageous  character  of  the  transaction  may  be 
taken  into  consideration. s  If  the  reiDresentative  misapplies 
funds  of  the  estate  in  a  purchase,  fraudulently  or  unreasonably, 
he  may  be  held  accountable  on  his  bond  for  the  misapplication  ; 
and  where  the  seller  was  cognizant  of  his  breach  of  trust,  those 
interested  in  the  estate  and  injured  thereby  may  bring  a  bill  in 

'  Ely  V.   Williams,    13  Wis.  i.     See  tion   accruing  to  the  estate,  to  release 

127  Mass.  174.  one  of  the  makers  of  a  promissory  note 

^  Cleveland  r'.  Harrison,  1 5  Wis.  670 ;  executed  to  him  in  his  fiduciary  capacity, 

Jelke   V.  Golsmith,   52    Ohio   St.  499;  from  liability  for  the  balance.     Latta  z/. 

Miller:'.  Henderson,  10  N.  J.  Eq.  320;  Miller,  109  Ind.  302.     And  see,  as  to 

supra,  §  214.  his  power  to  compromise,  supra,  §  298. 

^Wheeler   v.   Wheeler,   9   Cow.   34;  ■*  See  j?(;>rtf,  §  322,  as  to  investments. 

Gray   v.    Armistead,    6    Ired.    Eq.    74.  and  as  to  sales,  §  358. 

And   see    55    Miss.   278;  57    Ga.    232.  -' Colvin    -'.    Owens,     22     Ala.    782; 

An  executor  or  administrator  has  power,  Harper  v.  Archer,  28  Miss.  212. 
in  good  faith  and  for  a  just  considera- 

45  3 


§    364^^^  EXECUTORS    AM)    ADMINISTRATORS.  [PART   1\. 

equity  to  compel  the  seller  to  refund  the  purchase-mone}'  and 
place  them  in  statu  qiw^ 

§  363^7.  The  same  Subject.  —  As  in  Other  cases,  so  upon  his 
own  contract  of  purchase,  the  personal  representative  binds  him- 
self individually  to  those  with  whom  he  deals,  whether  the  estate 
may  reimburse  him  or  not.' 

§  364.  No  Authority  to  give  away  Assets.  —  The  exeCUtor  Or 
administrator  -has  no  inherent  right  to  give  away  assets  of  the 
estate,  even  though  he  should  deem  them  worthless.^  But  to 
give  assets  in  payment  of  some  claim,  or  as  an  offset  to  what 
may  be  due  the  representative  himself  on  a  settlement,  is  a 
different  matter  ;  and  a  will  sometimes  confers  a  discretionary 
authority  by  way  of  bestowing  tokens  from  the  decedent. 

*       ^^  3^>4'^^    Right  to  recover  Assets  wrongly  Transferred.  —  Where 

the  rci)resentati\'c  transfers  assets  of  the  estate  wrongly  or  mis- 
takenly, he  has  the  right  and  it  is  his  duty  to  recover  them 
again  for  the  benefit  of  the  estate. "♦ 

'  Trull  r'.  Trail,  13  Allen,  407:  supra,  will  to  purchase,  see  Willis  v.  Sharpe, 

§  352.     See  Cousins,  AV-,  30  Ch.  D.  203,  1 13  N.  Y.  586. 

\s'here  an  option  to  purchase  was  held  ^3   Port.  221  ;  Lovell  v.  Field,  5  Vt. 

personal  to  a  testator,  and  not  such  as  218;   118  N.  C.  440. 

his   executors  could  exercise  after  his  ^  Radovich's  Estate,  74  Cal.  536. 

death.     As  to  power  given  under  the  ^Zimmerman?'.  Kinkle,  108 N.  Y.  282. 

454 


^ 


CHAT.    V.J     LIABILITY  OF  EXECUTOR  OK   ADMl  N  IS'IRATOK.         ^    366 


CHAPTER  V. 

LIABILITY  OF  AN  EXECUTOR  OR  ADMINISTRATOR. 

§  365.  Liability  in  Respect  of  Acts  of  Deceased  or  his  Own 
Acts.  —  The  liability  of  an  executor  or  administrator  may  ac- 
crue ( i)  in  respect  of  the  acts  of  the  deceased  ;  or  (2)  in  respect 
of  his  own  acts.  These  two  subjects  will  be  considered  sepa- 
rately. 

§  366.  Liability  in  Respect  of  Acts  of  deceased;  Survival  of 
Actions  against  Decedent  founded  in  Contract.  —  First,  as  to  lia- 
bility in  respect  of  the  acts  of  the  deceased.  We  have  elsewhere 
considered  what  actions  survive  in  favor  of  the  estate,  where  the 
decedent  was  plaintiff. '  A  corresponding  principle  applies  as  to 
the  survival  of  actions  brought  against  the  decedent  chu-ing  his 
lifetime.  Accordingly,  it  has  long  been  settled  in  our  law,  that 
causes  of  action  which  are  founded  in  any  contract,  duty,  or  obliga- 
tion of  the  decedent,  and  upon  which  the  decedent  himself  might 
have  been  sued  during  his  lifetime,  will  survive  so  as  to  continue 
enforceable  against  his  estate.^  Consequently,  the  executor  or 
administrator  is  legally  answerable,  so  far  as  the  assets  in  his 
hands  may  enable  him  to  respond,  for  debts  of  every  description 
which  were  owing  by  the  deceased,  whether  debts  of  record,  such 
as  judgments  or  recognizances  ;  debts  due  on  special  contract, 
as  for  rent  in  arrears,  or  on  bonds,  covenants,  and  other  sealed 
contracts ;  or  debts  by  simple  contract,  such  as  bills  and  notes, 
and  promises  expressed  orally  or  in  writing.^  And  usually  the 
defences  to  a  suit  open  to  his  decedent  are  open  to  him  also.+ 

•i'«/ra,  §277.  Exrs.    1721  ;     Noy,    43;  Dyer,    344    b; 

^Wms.  Exrs.  1721  ;   i  Saund.  216  a;  Smith  r-.  Chapman,  93  U.  S.  Supr.  41; 

Atkins  V.  Kinnan,  20  Wend.  241.     But  Harrison  v.  Vreeland,  38  N.  J.  L.  366. 
void  contracts  of  the  decedent  should         -t  As  coverture,  for  instance.     108  N. 

be  disregarded.     62  Mich.  349.  ('.  218. 

■*Bac.  Abr.    E.xecutors,  P.    i;  Vv  ms. 

455 


§   366^  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

It  is  said  in  this  connection  that  there  is  no  difference  be- 
tween a  promise  to  pay  a  debt  certain,  and  a  promise  to  do  a 
collateral  act,  which  is  uncertain,  resting  only  in  damages,  such 
as  a  promise  by  the  decedent  to  give  such  a  fortune  with  his 
daughter,  or  to  deliver  up  such  a  bond  ;  for  wherever  in  this 
latter  class  of  cases  the  decedent  himself  was  liable  to  an  action, 
his  representative  shall  be  liable  also.'  Even  where  the  cause 
of  action  sounds  in  damages,  as  for  loss  of  one's  money  or  one's 
chattels  through  the  negligence  of  the  deceased,  the  latter  being 
an  attorney-at-law,  or  a  common  carrier,  and  the  damages  being 
laid  as  for  breach  of  his  contract,  the  action  will  survive  against 
the  representative.^ 

This  survival  of  actions,  founded  in  the  decedent's  contract 
liability,  does  not  require  any  express  reference  in  the  contract 
itself  to  the  contingency  of  death,  nor  in  so  many  words  to  one's 
executors  or  administrators  ;  for  the  contract,  if  not  personal  in 
its  nature,  implies  of  itself  that  death  shall  not  cut  off  the  sur- 
vivor's remedies.^  And  executors  or  administrators,  being  but 
officials  commissioned  to  wind  up  the  decedent's  estate,  that 
estate  as  of  course  goes  first  towards  discharging  all  lawful 
claims  and  demands  against  the  deceased  which  may  be  out- 
standing at  his  death.'' 

§366^.  The  same  Subject;  Sales  and  Bargains  of  the  Decedent. 
—  In  case  of  an  incomplete  delivery  under  the  sale  or  bargain  of 
the  decedent,  his  representative  ought  to  complete  the  delivery 
and  carry  out  the  contract. 5  Liability  or  nonliability  in  such 
matters  should,  as  to  the  decedent,  follow  the  usual  rules." 

'  Bac.    Abr.    Executors,    P.    2;  Cro.  was  issued,  but  before  it  could  be  served 

Jac.  404,  417,   571,  662;  Wms.   Exrs.  the  defendant  died.     Within  a  reason- 

1722.  able  time  after  executors  had  proved  the 

^  Knights  V.  Quarles,  2  B.  &  B.  102  ;  will  a  fresh  writ  was  served  against  them 

Cowp.    375;  Alton  v.  Midland   R.,   19  for  the  same  cause;  and  it  was  held  that 

C.  B.  .N.  s.  242  ;  Wms.  Exrs.  799,  1722  ;  the  executors  could  not  plead  the  stat- 

Wilson  V.  Tucker,  3  Stark.  N.  P.  154.  ute   of    limitations,    though    the   legal 

Cf.  Miller  f.  Wilson,  24  Penn.  St.  114;  period  had  meantime  expired.    Swindell 

Long  7'.  Morrison,  14  Ind.  595.  v.  Bulkeley,  18  Q.  B.  D.  250. 

'  Bradbury  v.  Morgan,  i  H.  &  C.  249  ;  *  See  Part  V.,  as  to  the  payment  of 

2    Mod.   268 ;    Bac.  Abr.   Exrs.    P.    i  ;  debts,  etc.,  against  an  estate. 

Wms.   Exrs.   1724;  3  Bulstr.   30;  Wil-  '  Parker  z/.  Barlow,  93  Ga.  700. 

liams  t/.  Burrell,  i   C.  B.  402.     A  writ  *See  146  Penn.  St.  63. 

456 


CHAP,   v.]     LIABILITY  OF  EXECUTOR   OR  ADMINISTRATOR.         §    367 

§  367.  The  same  Subject ;  Exception  as  to  Personal  Contracts  of 
the  deceased.  —  But  a  distinction  is  here  to  be  taken  in  favor  of 
contracts  of  a  personal  nature,  or  such  as  are  essentially  limited  in 
scope  by  one's  lifetime,  and  other  obligations.  A  contract  to  de- 
liver 1,000  cartridges  may  be  fulfilled,  or  a  note  for  $1,000  paid 
off,  by  one's  assignees  or  personal  representatives,  notwithstanding 
his  own  death,  provided  assets  suffice  for  sustaining  the  liability  ; 
and  such  contracts  are  generally  made  upon  some  consideration 
of  reciprocal  advantage,  which  the  death  of  either  party  should 
not  ipso  facto  annul  ;  designating,  furthermore,  some  date  here- 
after at  which  the  obligation  shall  mature,  regardless  of  ev'ery 
such  contingency.  There  are  no  such  personal  considerations 
involved  in  a  contract  of  this  sort  that  an  assignee  might  not 
discharge,  as  well  as  the  original  contractor.  Such  an  obliga- 
tion, profitable  or  unprofitable,  and  as  for  fulfilment  or  damages, 
the  survivor  enforces  against  the  decedent's  estate,  nor  does 
death  cancel  it.  But  where  the  contract  was  personal  to  the 
testator  or  intestate  himself  :  as,  for  instance,  to  instruct  an 
apprentice,  to  employ  a  particular  servant  ;  being  an  author,  to 
compose  a  certain  book,  or,  as  an  experienced  architect,  to  plan 
a  building ;  or,  as  a  soldier,  to  serve  in  the  army,  or,  in  general, 
for  hiring  ;  the  case  is  different.  Here,  it  may  be  assumed,  that 
unless  the  contract  expressly  provides  differently  (as  in  some 
instances  it  may),  death  necessarily  severs  the  relation  and  puts 
an  end  to  the  legal  obligation  which  has,  without  fault  of  the 
contractor  become  impossible  of  performance.  In  such  instances 
the  estate  of  the  decedent  is  relieved  of  all  further  liability  under 
the  contract ;  '  though,  for  any  breach  of  such  a  contract  com- 

'Cro.  Eliz.   533;  Siboni  z'.  Kirkman,  making  it  matter  of  judicial  interpreta- 

I  M.  &  W.  423;   Robinson  z/.  Davison,  tion.     Thus,   a  covenant  by  B.  not  to 

L.  R.  6  Ex.  269  ;  Smith  v.  Wilmington  exercise  a  certain  business,  but  to  solicit 

Coal   Co.,  83    111.  498;    Wentworth  v.  business  regularly  for  A.,  upon  a  certain 

Cock,    10  Ad.  &   E.  45;    Wms.   Exrs.  consideration,  does  not  bind  B.'s  widow 

1725;  jK/ra,  §  278;  Bland  z-.  Umstead,  as  such.    Cokes'.  Colcroft,  2  W.  Bl.  856. 

23  Penn.  St.  316.     A  contract  to  sup-  On  the  other  hand,  one  might  so  clearly 

port  a  parent  is  personal,  and  does  not  have  contracted  with  a  servant  or  arti- 

bind  the  representative.     Slier  v.  Gray,  san  for  a  fixed  period,  that,  if  he  died 

86  N.  C.  566.     There  may  be  various  meantime,  his  representatives  would  be 

contracts  of  a  personal   nature  brought  bound  to  find   employment  or  pay  for 

under  this  rule,  andz'/V^  versa,  the  court.*^  the  remaining  period  at  the  cost  of  the 

457 


§   367  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

mitted  during  the  decedent's  lifetime,  the  executor  or  adminis- 
trator must  of  course  respond  out  of  the  assets,  as  in  other 
cases.  Act  of  God  preventing  or  terminating  the  performance 
of  a  personal  contract,  is  held  to  excuse  it ;  and  even  sickness 
or  disability  may  justify  its  breach  during  one's  life.' 

The  personal  nature  of  a  contract  applies  with  similar  force 
as  between  those  who  have  occupied  the  relation  of  master  and 
servant,  or  principal  and  agent.  One's  clerk  or  agent  is  dis- 
charged, presumabl}',  b)-  the  employer's  death  ;  and  where  the 
employment  was  by  a  firm,  the  death  of  one  of  the  partners, 
while  dissolving  the  firm,  dissolves  likewise  the  relation  with  the 
person  employed,  even  though  a  stated  term  of  employment  had 
not  yet  run  out."  The  authority  of  an  agent  is  commonly  re- 
voked by  the  death  of  his  principal  ;  and  consequently  the  agent 
cannot  commonly  sue  the  executor  or  administrator  for  services 
performed  after  the  principal's  death,  though  this  were  upon  a 
contract  made  for  a  fixed  period  with  the  decedent  himself ;  for, 
upon  notice  of  death,  he  should  cease  performance  or  else  get  a 
new  personal  authority  elsewhere. ^  The  rule  of  apportionment, 
custom,  statute,  or  express  contract,  all  seek  to  mitigate,  how- 
ever, the  harsh  consequence  of  such  a  doctrine.'*  And,  con- 
versely, the  death  of  the  agent,  servant,  or  person  hired  or 
employed,  operates  similarly  against  the  principal,  master,  or 
employer,  where  the  law  is  left  to  operate  naturally.' 

But  where  the  contract  between  the  parties  was  expressed  in 
writing,  the  language,  scope,  and  intendment  of  the  instrument 
must  be  considered  in  instances  like  the  foregoing.  Thus,  if 
one  covenants  personally  in  a  lease,  his  death  may  be  held  to 

estate.     The  line  of  distinction   some-  sentative's  liability  for  advances  made 

times  runs  very  closely.    Cf.  Wentworth  after  the  decedent's  death  on  a  continu- 

7\  Cock,  10  Ad.  &  E.  45,  where  a  con-  ing  guaranty,  Bradbury  t.  Morgan,  i  H. 

tract  to  supply  materials  for  a  certain  &  C.  249;  Wms.  Exrs.  1770. 

number  of  years  was  treated  as  obliga-  '  Schoul.  Dom.  Rel.  §  474. 

tory  on  the  representatives  of  the  de-  '  Tasker  7:  Shepherd,  6  H.  &  N.  575. 

cea.sed  contractor,  and  therefore  as  en-  '  Campanari  i/.  Woodburn,    15  C.  B. 

titling  them  to  the  profits  accruing  from  400;  Wms.  Exrs.  1727. 

a  proper  fulfilment  on  their  part,  with  *  Schoul.  Dom.  Rel.  §  473. 

Dickenson  v.  Callahan,   19    Penn.    St.  ^  lb.    See  Powell  z/.  Graham,  7  Taunt. 

227,  where  the  contrary  interpretation  580. 
was  given.     And  cf.  a.s  to  the   repre- 

45« 


CHAP.    \'.J     LIABILITY  OF  EXECUTOR   <)U   A  DMIN  LSTRATOK.         §    368 

discharge  his  estate  and  his  personal  representatives  from  all 
obligation  further  than  performing  the  covenant  during  his  own 
life.  Hut,  as  leases  under  seal  commonly  run,  this  would  be 
quite  exceptional  ;  and  covenants  usually  bind  one's  executors, 
and  administrators,  and  assigns,  during  the  full  period,  in  express 
terms.'  Whether  or  not  a  contract  is  strictly  personal  depends 
upon  the  intention  of  the  parties  as  gathered  from  their  acts 
or  writings  ;  -  and  presumption  favors  the  binding  of  one's  es- 
tate.^ 

§  368-  The  same  Subject  ;  Distinction  between  Gifts  and  Con- 
tracts. —  So,  too,  an  obligation  enforceable  after  one's  death 
against  his  estate,  must  have  been  founded  in  a  legal  contract 
consideration.  Gifts  to  take  effect  after  death  stand  upon  the 
footing  of  legacies  or  gifts  causa  mortis,  and  if  valid  at  all,  must 
be  referred  to  the  peculiar  rules  which  apply  thereto."*  As  a 
court  of  equity  will  not  inter  vivos  compel  any  one  to  complete 
his  gift,  neither  will  it  compel  one's  executor  or  administrator  to 
complete  it  on  his  death.  Hence,  an  act  of  pure  bounty,  not 
fully  performed  by  the  decedent  during  his  lifetime,  cannot  be 
specifically  enforced  against  the  estate  or  its  representatives 
And  hence,  too,  although  a  promise  by  the  decedent  of  recom- 
pense for  services  rendered  may  be  sued  upon,  even  though  the 
promised  recompense  was  to  have  been  by  way  of  a  legacy  which 
the  decedent  did  not  in  fact  leave  to  the  plaintiff,  no  mere  ex- 
pectation of  a  legacy,  gift  or  gratuity,  can  furnish  ground  for 

'  Touchst.    178,    482  ;    §  375  ;    Wms.         =  Hooper  v.  Goodwin,  i  Swanst.  485  ; 

Exrs.  1726;  Williams  57.  Burrell,  I  C.  B.  Callaghan  v.  Callaghan,  SCI.  &  Fin. 

402.     So  a  covenant  to  maintain  an  ap-  374  ;  Dillon  v.  Coppin,  4  My.  &  Cr.  637. 

prentice  is  held  to  continue   in  force  And  see  Shurtleff  7,'.  Francis,  118  Mass. 

after  the  master's  death,  while  a  cove-  154;  Stone  v.   Gerrish,   i    Allen,    175; 

nant  to  instrtut  him  does  not.     Wms.  Schoul.  Dom.  Rel.  3d  ed.  §  274;  Wms. 

Exrs.  1765;   I  Salk.  66.  Exrs.  1768,  and  Perkins's  note.  A  prom- 

^  Smith   V.    Preston,     170     111.    179;  ise  that  one's  representative  shall  pay  A. 

Oliver  v.   Rumford  Works,   109   U.    S.  ^20,   in  consideration  that  A.  remains 

81.  in  his   service  till  his  death,  is  enforce- 

^  Chamberlain  7'.  Dunlop,  126  N.   Y.  abl©  within  the  rule  of  the  text.     I'owell 

45.  52.  V.   Graham,   7   Taunt.    580.      Cf.    Cro. 

••  See   Part  V.  as  to  legacies;  sicpra,  Eliz.  382;  Wms.  Exrs.  1728.     See  also 

§  219.  Bell  7'.  Hewitt,  24  Ind.  280. 

459 


§    370  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

bringing  a  suit  against  the  estate.  Nor  can  the  representative 
be  sued  upon  any  mere  writing,  though  under  seal,  which  pin- 
ports  to  make  a  voluntary  gift  after  one's  decease,  out  of  his 
estate ;  for  this  would  contravene  the  policy  of  our  statutes 
of  wills.'  In  other  words  any  contract  unexecuted  must  have  a 
sufficient  legal  consideration  in  order  that  one  may  sue  upon  it.^ 

§  369-  The  same  Subject;  Form  of  Action  sometimes  Material 
in  this  Connection  ;  Law  or  Equity.  —  The  form  of  action  appears 
sometimes  material  in  connection  with  suits  against  the  repre- 
sentative touching  the  obligation  of  the  decedent.  But  modern 
practice,  both  in  England  and  the  United  States,  generally 
abolishes  a  distinction  formerly  taken  as  to  "  wager  of  law,"  so 
that  the  action  of  debt  on  simple  contract  is  maintainable,  as  well 
whether  the  contract  was  made  by  the  decedent  or  by  his  per- 
sonal representative. 3  To  revive  an  action  against  executor  or 
administrator  the  requirements  of  the  local  statute  must  be  fol- 
lowed."* 

Specific  performance  in  equity  will  rarely  lie  on  the  unexecuted 
contracts  of  a  decedent  relating  to  personalty,  since  the  remedy 
at  law  for  damages  is  usually  adequate  and  certain. ' 

§  370.  Survival  of  Actions  against  Deceased  founded  in  Tort; 
not  permitted  at  Common  Law.  —  Where,  on  the  Other  hand,  the 
cause  of  action  against  the  decedent  was  founded  in  tort,  and 
not  contract,  it  was  the  common-law  rule  that  the  right  of  ac- 


'  Baxter  v.  Gray,  3  M.  &  G.  771  ;  Le  Mississippi   code  cited  62   Miss.  19,  as 

Sage  7'.  Coussmaker,  i  Esp.  188;  Nield  to  reviving  a  suit  by  j«'.ya.  for  a  general 

V.  Smith,  14  Yes.  491.  final  judgment.     New  York  code  per- 

'  As  to  gifts  generally,  see  2  Schoul.  mits  a  continuance  and  revival  of  an 

Pers.  Prop.  §§  54-125.  action    which     legally    survives     even 

^  \Vms.  Exrs.  1930,  193 1  ;  9  Co.  87  b;  though  both  plaintiff  and  defendant  die. 

Riddell  v.   Sutton,  5  Bing.  206  ;  stat.  3  Ilolsman  z;.  St.  John,  90  N.Y.  461.    The 

&4  Wm.  IV.  c.  42.     Other  actions  were  question  of  assets  or  no  assets  cannot 

substituted  at  common  law  in  the  stead  be  raised  where  a  representative  asks  to 

of  those  which  did  not  survive  under  the  be  made  the  party  defendant.     91  N.  C. 

rule  of  the  text.     Cowp.   375,  by  Lord  495. 

Mansfield.      And    see     Thompson     v.         '  Beekman  v.   Cottrell,  51    N.  J.  Eq. 

French,  10  Yerg.  452.  337. 

*  Segars  v.  Segars,  76   Me.  96.     See 

460 


CHAP,   v.]    LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.         §    370 

tion  to  recover  damages  died  with  the  person  who  committed 
the  wrong.  Consequently,  wherever  an  injury  had  been  done 
to  the  person  or  property  of  another  for  which  damages  only 
could  be  recovered,  as  for  one's  wilful  misconduct  or  negligence, 
the  death  of  the  wrong-doer  before  judgment  precluded  legal 
redress.  Thus,  one's  executor  or  administrator  could  not  be 
sued  for  false  imprisonment,  assault  and  battery,  slander,  libel, 
malicious  prosecution,  or  any  other  personal  injury  inflicted  by 
the  decedent,  whether  mental  or  physical.'  Nor  for  trespass, 
trover,  or  deceit  ;  nor  for  causing  damage  by  a  nuisance,  divert- 
ing a  water-course,  or  obstructing  lights.^ 

The  right  of  action  for  default  and  embezzlement,  in  trusts 
public  or  private,  died  upon  the  same  principle  with  the  offender.^ 
So,  if  the  executor  or  administrator  himself  committed  waste 
and  died,  it  was  treated  as  a  personal  tort  which  died  with  his 
own  person,  saving  his  estate  harmless  ;  ■♦  though  equity  pre- 
scribed a  different  rule  ;  5  while,  upon  one's  official  bond,  more- 
over, suit  might  perhaps  lie  as  upon  a  contract  liability.'' 

Liability  on  a  penal  statute  or  under  a  subpoena  dies  with  the 
person  at  common  law.^  Also,  the  liability  of  a  marshal,  sher- 
iff, or  jailer,  for  permitting  an  escape,  or  for  other  malfea.sance 
or  neglect  of  himself  or  his  deputies.**  Also  liability  to  prose- 
cution for  violating  some  municipal  ordinance.^ 

But  if  judgment  had  been  recovered  against  the  person  com- 

'  Wms.  Exrs.  1728;   i    Saund.  216  a;  tees  and  their  representatives  with  the 

Waters  z'.  Nettleton,  5  Cush.  544  ;  More  consequences  of  a  breach  of  trust.     lb. 

V.  Bennett,  65  Barb.  338;  87  N.  C.  351.  *>  Supra,  §366. 

^  Perry  7'.  Wilson,  7  Mass.  395;  Haw-  ''Wms.  Exrs.  1728;  Wentw.  Off.  Ex. 

kins  7'.  Glass,    i    Bibb,   246;  Nicholson  255,   14th  ed. ;  Schreiber  v.  Sharpless, 

V.  Elton,  13  S.  &  R.  415  ;  Jarvis  v.  Rog-  1 10  U.  S.  76. 

ers,   15   Mass.  398;  Wms.   Exrs.   1728.  "  Ld.  Raym.  973;  Hambly  e/.  Trott,  i 

As  between  a  claim  of  damages  for  Cowp.  375 ;   W^ms.  Exrs.  1729;  Martin 

deceitful  misrepresentation  inducing  a  v.  Bradley,    i    Caines,    124;    People  ?'. 

purchase,  and  a  claim  to   rescind   the  Gibbs,  9  Wend.  29.     See  Lynn  v.  Sisk, 

purchase,    see    Duncan   Re,     (1899)    i  9  B.  Monr.  135. 

Ch.  387.  9  Carrollton   v.    Rhomberg,    78    Mo. 

'Franklin  z/.  Low,  i  Johns.  396.  547;  §§279-283;    Diversey   v.    Smith, 

'*3  Leon.  241;  i   Ventr.  292;  Wms.  103  111.  378.     Malpractice  suits  do  not 

Exrs.  1729.  survive    the     defendant.       Jenkins    v. 

'  Price  z*.  Morgan,  2  Chanc.  Cas.  217  ;  French,  58  N.  H.  532  ;  Boorz'.  Lowrey, 

Wms.  Exrs.  1739.     Equity  charges  trus-  103  Ind.  468.     Nor  an  action  for  breach 

461 


§   372  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

mitting  the  wrong,  during  his  Ufe,  the  judgment  debt  would 
have  bound  the  estate  ;  for  as  to  the  foundation  of  that  judg- 
ment, whether  in  a  cause  of  action  which  survives  or  not,  there 
is  no  essential  difference  ;  the  judgment  itself  creating  a  new 
and  distinct  obligation  of  the  contract  kind.' 

§^71.  The  same  Subject;  whether  Replevin  can  be  maintained 
against  the  Representative.  —  In  replevin,  if  the  plaintiff  died,  the 
cause  of  action  appears  to  have  survived  at  the  common  law  ; 
but,  if  the  defendant  died,  the  right  of  action  against  him  died 
also ;  so  that,  although  the  personal  representatives  of  a  party 
from  whom  goods  or  chattels  had  been  tortiously  taken  in  his 
lifetime  might  bring  replevin,  no  such  action  could  be  maintained 
against  the  personal  representatives  of  one  who,  in  his  lifetime, 
had  tortiously  possessed  himself  of  goods,  unless  the  property 
came  into  the  possession  of  the  personal  representatives,  and 
they  refused  to  restore  it.^ 

§  372.  The  same  Subject;  whether  other  Remedies  might  be 
applied  because  of  the  Tort.  —  While  actions  declaring  as  for  a 
tort  committed  by  the  defendant  were  thus  defeated  or  abated 
by  such  party's  death,  other  remedies  against  his  estate  might 
sometimes  avail  for  the  injured  person's  redress,  provided  the 
form  of  declaration  were  different.  As,  perhaps,  in  bringing 
detinue  to  recover  chattels,  in  specie ;  ^  or  where  the  form  of 

of  promise  of  marriage  except  for  spe-  '  Wms.    Exrs.    1740;    Dyer,    322    a; 

cial  damage  to  property.     Finlay  7/.  Chir-  supra,  §  366. 

ney,  20   Q.   B.   D.  494;  Chase  z/.  Fitz,  -In   replevin,  the  plaintiff's    ground 

132  Mass.  359.     Divorce  suits  abate  by  of  action  is  his  property,  eitlier  general 

a  defendant's  death.     McCurley  t'.  Mc-  or  special,  and  a  tortious   violation  of 

Curley,  60  Md.    185.     Also    an   action  his  right  of  property  by  the  defendant, 

against  a  trustee  or  an  officer  of  a  cor-  Parsons,  C.  J.,  in  Mellen  v.  Baldwin,  4 

poration  to  recover  a  statute  penalty.  Mass.  481  ;  Lahey  v.   Brady,   i    Daly, 

Stokes   7'.    Stickney,   96    N.    Y.    323;  443;  Potter  z/.  Van  Vranken,  36  N.  V. 

Brackett  ;;■.   Griswold,   103   N.    V.  425.  619, 627,/^r  Davies,  C.  J.     Wms.  Exrs. 

Also  an  action  for  enticing  away  a  ser-  1730,  appears  to  state  this  point  differ- 

vant.     Huff  v.  Watkin.s,  20  S.  C.  477.  ently. 

Also  action  against  a  bank  officer  for  'Wms.    Exrs.    1730;    Le    Mason   v. 

negligent  mismanagement.     23  Blatch.  Dixon,  W.  Jones,  173;  3  Dev.  L.  303; 

457.     The  death  of  a  lunatic  abates  a  i    Leigh,  86.     Detinue,  unlike  replevin, 

suit  against  him.     80  V'a.  873.  is  for  detaining  unlawfully  rather  than 

462 


CHAP.   V.j    LIABILITY  OF  EXECUTOR  OK  ADMINISTRATOR.        v^    373 

action  was  ex  contractu  ;  ''  and,  generally,  if  the  wrongful  act 
might  be  laid  to  the  executor  or  administrator  himself,  or  else, 
waiving  the  tort,  an  action  might  be  brought  as  upon  an  im- 
plied contract,  or  for  money  had  and  received.-  As  in  various 
other  instances,  the  common  law,  while  insisting  upon  a  legal 
maxim  which,  rigidly  applied,  might  work  injustice,  favored  arti- 
fice and  the  dexterous  application  of  forms  for  correcting  the 
worst  mischief ;  so  that  its  courts  might  render  a  righteous 
judgment  while  maintaining  the  severe  aspect. 

§  373-  Modern  Statutes  enlarge  the  Survival  of  Actions 
against  Decedent.  —  As,  however,  with  actions  on  behalf  of  a 
decedent's  estate,^  so  where  the  decedent  was  defendant,  mod- 
ern legislation,  both  in  England  and  the  United  States,  favors 
an  enlargement  of  the  causes  where  survival  shall  be  allowed  ; 
and  often,  too,  by  the  same  enactment.  Thus,  under  the  Eng- 
lish Stat.  3  &  4  Wm.  IV.  c.  42,  an  action  of  trespass  is  main- 
tainable against  the  executor  or  administrator  of  any  person 
deceased,  for  an  injury  to  property,  real  or  personal,  committed 
within  six  months  before  his  death  ;  provided  the  action  be 
brought  not  later  than  six  months  after  the  representative  shall 
have  taken  administration. ^  And  in  many  American  States 
the  survival  of  actions  for  torts  of  a  decedent  is  still  more  widely 
extended,  so  as  not  only  to  embrace  causes  grounded  in  an  in- 
jury to  one's  person  or  character,  but  to  permit  of  replevin  and 
various  other  forms  of  action  without  particular  limitation  as  to 
the  time  when  the  offence  was  committed. ^     But,  whether  di- 

tortiously  acquiring.     But  see  Jones  zj.  Gilford,    Cro.    Car.    539 ;  Wms.    Exrs. 

Littlefield,  3    Yerg.   133,  to  the  effect  1730,  1731  ;  United  States  z/.  Daniel,  6 

that  detinue  cannot  revive  as  for  an  act  How.    (U.    S.)    11.     In    general,   as  to 

committed  by  the  decedent  himself.  waiving  the  tort  and  all  special  damages, 

'  See  supra,  §  366.     As  to  suing  for  and  suing  as  for  the  proceeds,  etc.,  see 

breach  of  promise,  see  Shuler  v.  Mill-  i    Chitty  PI.   (i6th  Am.  ed.)   112,  Per- 

saps,  71    N.   C.  297;  2    Chitty  Contr.  kins's  note, 

(nth  Am.  ed.)  1443  ;  §  370,  note.  ^  Supra,  §  282. 

^As    in    assumpsit,     i    Cowp.    375;  '•Wms.   Exrs.   1734;  Powell  z^.  Rees, 

Collen  V.  Wright,  7  El.  &  Bl.  647.     Or  7  Ad.  &  El.  426. 

action   for    use    and    occupation.     lb.  =  Deceit,  malpractice,  etc.,  are  thus  in 

.\nd  see,  as  to  money  for  which  a  sher-  some  States  made  a  good  cause  of  ac- 

iff  was  liable  to  account,  Perkinson  v.  tion     notwithstanding     the    offender's 

463 


§  374 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


rectly  or  b}'  implication,  such  statutes  appear  to  conform  to  the 
general  policy  which  accords  to  executors  and  administrators, 
not  themselves  in  default,  a  special  and  brief  period  of  limita- 
tions, in  order  that  they  may  settle  up  the  estate  expeditiously 
and  upon  a  full  knowledge  of  the  claims  for  which  officially 
they  shall  be  held  answerable."  A  cause  of  action  for  injury 
to  propcrt)'  rights  may  thus  stand  on  a  good  footing,  while  that 
for  injury  to  the  person  dies  with  the  wrong-doer. 

§  374-    Survival  of  Actions  for  Rent  or  Damage  to  Real  Estate. 

—  Rent  due  from  a  decedent  may  be  recovered,  whether  the 
remed}'  be  by  action  for  use  and  occupation,  or,  perhaps  (in 
case  of  a  written  lease),  as  under  the  stipulations  of  a  sealed 
contract.^  But  recovery  in  ejectment  raised  technical  difficul- 
ties, which  have  now  become  of  little  practical  consequence.^ 
At  the  common  law,  an  action  of  trespass  for  mesne  profits 
while  one  was  wrongfully  in  possession  could  not  be  brought 
against  his  executor  or  administrator ;  ^  though  a  bill  in  equity 
for  an  account  of  mesne  profits  was  under  special  circumstances 
sustained.  5 


death.  See  the  special  causes  (embiac-  for  illegal  arrest  or  false  imprisonment 
ing  bodily  injuries)  enumerated  in  Mass.  do  not  include  actions  for  malicious 
Pub.    Stats,    c.    165,  §  I  ;  Nettleton   v.     prosecution.     Clark  v.  Carroll,  59  Md. 


Dinehart,  5  Cush.  543.  And  see,  also, 
Shafer  v.  Grimes,  23  Iowa,  550;  i 
Chitty  PI.  58,  note;  supra,  §  282; 
Haight  7'.  Hoyt,  19  N.  Y.  464.  The 
reader  is  referred  to  the  .statutes  of  the 
respective  States  on  this  subject. 

Damages  actually  sustained,  and  not 


180.  But  a  cause  of  action  for  con- 
spiracy to  cheat  and  defraud  may  sur- 
vive as  affecting  property  rights.  Brack- 
ett  V,  Griswold,  103  N.  Y.  425. 

'  See  Part  V.,  c.  i,  as  to  payment  of 
debts. 

-  Turner    v.    Cameron's    Co.,    5    Ex. 


exemplary  or  vindictive  damages  may  932;  Wms.  Exrs.  1731. 
be  recovered.  Ma.ss.  Pub.  Stats,  c.  166.  ^  Wms.  Exrs.  1731  ;  Pulteney  v.  War- 
As  to  the  form  of  judgment  in  replevin,  ren,  6  Yes.  86 ;  Birch  v.  Wright,  i  T. 
see  ib.  All  actions  which  would  have  R.  378;  Jones  v.  Carter,  15  M.  &  W. 
survived  if  commenced  by  or  against  718.  An  action  of  ejectment  abates  at 
the  original  party  in  his  lifetime  may  be  common  law  on  the  death  of  the  sole 
commenced  and  prosecuted  by  and  defendant.  Farrall  v.  Shea,  66  Wis. 
against  his  executors  and  admini.strat-  561.  See  Part  VI. 
ors.  Mass.  Pub.  Stats,  c.  166,  §i;  6  ^Pulteney  v.  Warren,  6  Yes.  86; 
Jones,  60.  Action  for  infringement  of  Wms.  E.xrs.  1731  ;  Harker  7'.  Whitaker, 
a  patent  survives.     Atterbury  v.  Gill,  2  5  Watts,  474. 

Flip.    239;  28   Fed.    R.    460.     Actions  '  Ib. ;  Caton  f.  Coles,  L.  R.  i  Eq.  581. 

464 


CHAP.   \'.]     LIABILITY  OF  EXECUTOR  OK  ADMINISTRATOR.        §    375 

Waste,  mureover,  did  not  lie  against  the  representative  at  the 
common  law  ;  this  being  a  tort  which  died  with  the  person  who 
committed  it.  Yet,  upon  the  decedent's  tort,  as  for  instance  in 
cutting  down  trees  or  digging  coal,  there  might  accrue  the  less 
remunerative  right  of  action  against  the  representative,  as  for 
money  received  by  selHng  it.'  Or  a  bill  in  equity  might  lie  for 
account.-  So,  if  a  man  committed  equitable  waste  and  died,  as 
where  a  tenant  for  life  abused  his  power  by  cutting  down  orna- 
mental trees,  equity  asserted  jurisdiction  to  make  his  personal 
i-epresentatives  accountable  for  the  produce  thereof.^ 

The  executors  and  administrators  of  a  tenant  for  years,  how- 
ever, are  punishable  for  waste  committed  by  themselves  while  in 
])Ossession  of  the  land,  as  other  persons  arc* 

§  375-  Liability  of  Representative  on  Covenants  of  his  Dece- 
dent; Covenants  under  Lease,  etc. —  Wherever  the  decedent  was 
bound  by  a  covenant  whose  performance  was  not  personal  to 
himself  and  terminable  by  his  death,  his  executor  or  administra- 
tor shall  also  be  bound  by  it,  even  though  not  named  in  the 
deed.  And  whether  the  covenant  was  broken  during  the  life  of 
the  decedent  or  after,  so  long  as  it  was  a  continuing  and  express 
c()\enant,  and  the  appropriate  rule  of  limitations  leaves  the  es- 
tate still  unsettled  in  the  representative's  hands,  the  latter  is 
answerable  in  damages  for  its  breach. 5  For  the  benefits  of  a 
covenant  and  its  burdens  are  transmitted  to  the  representative 
together ;  not,  however,  where  it  is  clear  that  the  covenant  ap- 


'2    Saund.    252;  Cowp.   376;  Wms.  ^2    Mod.    326;    Wells   v.    Betts,    10 

Exrs.   1732;  Powell  v.   Rees,  7   Ad.  &  East,  316;  Hovey  £».  Newton,  11  Pick. 

El.  426;  Moore  v.  Townshend,  33  N.  J.  421 ;  Wms.  Exrs.  1750;  Taylor  Landl.  & 

284.     The  foundation  of  this  action  ap-  Ten.  §  669.     Thus,  damages  for  breach 

pears  to   be  the   benefit    the    personal  of  a  covenant  for  quiet  enjoyment  un- 

estate  of  the  decedent  has  derived  in  der  a  lease  accruing  both  before  and 

consequence  of  the  waste.     lb. ;  Taylor  after  the  death  of  the  covenantor  may 

Landl.  &  Ten.  §  689.  be  recovered  in  one  action  against  his 

^  I  P.  Wms.  406.  personal  representative.     11   Pick.  421. 

'  Lansdowne  v.  Lansdowne,  i  Madd.  The  rule  is  stated  differently  as  to  mere 

116;  Wms.  Exrs.  1732,  1733.  covenants  in  law,  not  express.     Wms. 

"  Taylor  Landl.  &  Ten.  §  689.     For  Exrs.  1752. 
statute  changes  on  this  point  see  Taylor 
Landl.  &  Ten.  §  689. 

30  465 


§    375  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

plied  only  to  the  covenantor  personally  and  was  limited  to  his 
own  lifetime.'  Upon  all  the  covenants  by  the  decedent  broken 
during  his  lifetime,  even  though  they  were  personal  to  the  dece- 
dent in  liability,  the  personal  representative  is,  of  course,  answer- 
able for  the  breach  out  of  the  assets.^ 

Although  a  covenant  in  a  lease  should  be  of  a  nature  to  run 
with  the  land,  so  as  to  make  the  assignee  thereof  liable  for  any 
breach  committed  after  its  assignment,  and  although  the  lessor 
has  accepted  the  assignee  as  his  tenant,  yet  a  concurrent  liabil- 
ity on  the  covenant  may,  nevertheless,  continue,  so  as  to  charge 
the  original  lessee  and  his  executor  or  administrator,^  And 
hence,  the  personal  representative  who  sells  the  lease  may  well 
require  of  the  purchaser  a  covenant  for  indemnity  against  the 
payment  of  rent  and  performance  of  covenants ;  though,  inde- 
pendently thereof,  he  will  have  his  remedies  over  against  his 
assignee  to  that  intent.^ 

If  in  possession  of  premises  under  a  covenant,  the  executor 
or  administrator  may  be  sued  in  covenant  as  assignee,  for  he  is 
assignee  in  law  of  the  interest  of  the  covenantor. s  But,  for  a 
breach  committed  in  the  time  of  the  decedent,  the  judgment 
must  be  out  of  his  assets,  and  the  representative  should  be  sued 
in  that  character.''  Leases  pass  to  one's  executor  or  administra- 
tor as  chattels  real  or  personal  assets,  with  all  incidental  bene- 
fits and  burdens ;  and  the  rule  is  general,  that  an  assignment  of 
the  lease  will  not,  of  itself,  affect  the  liability  of  the  lessee  or 
his  personal  representative  to  the  lessor  upon  the  covenants 
therein  contained  ; "  though  an  assignment  or  surrender  with 
the  lessor's  consent,  and  duly  accepted  by  him,  may  practically 

'  Coffin  7'.  Talman,  8  N.  Y.  465  ;  Tay-  over,  though  to  a  pauper.     Rowley  v. 

lor   Landl.   &  Ten.   §  460.     As,   f.j,^.,   a  Adams,  4  My.  &  Cr.  534. 

covenant  to  repair,     lb.  ■•  Wilkins  v.  Fry,  i  Meriv.  265  ;  Moule 

==  Wentw.  Off.  Ex.  251  ;   Wms.  Exrs.  ;■.  Garrett,  L.  R.  5  Ex.  132  ;  Wms.  Exrs. 

1750.  1752- 

3  Wms.    Exrs.  1750;  Taylor  Landl.  &  'i    Ld.    Raym.    453,-    Montague    v. 

Ten.    §669;    Greenleaf   v.    Allen,    127  Smith,   13  Mass.  405 ;  Taylor  Landl.  & 

Mass.  248.     Aliter,  where  the  decedent  Ten.  §  669;   16  Hun,  177. 

himself  was  assignee  of  an  original  les-  *  lb. 

see;  for  here  all  future  liability  may  be  ^  Dwight  ta  Mudge,  12  Gray,  23. 
discharged  if  the  representative  assigns 

466 


CHAP,   v.]    LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.        §    376 

terminate  the  original  lessee's  responsibility  as  by  mutual  con- 
sent,' 

§  376.   Liability  of  the  Personal  Representative  for  Rent.  —  The 

personal  representative's  liability  for  rent  follows,  so  far  as  may 
be,  the  foregoing  doctrines.  For  a  promise  under  seal  to  pay 
rent  constitutes  a  covenant,  and  justifies  for  its  breach  an  action 
of  covenant ;  ^  though  there  may  be  a  tenancy  without  a  lease, 
and  of  a  more  precarious  nature.  Assignment  of  a  lease  by  the 
lessee  during  his  life,  or  by  his  personal  representative  after  his 
death,  cannot  of  itself  avail  to  clear  the  estate  of  responsibility 
for  rent ;  though  an  assignment  or  underlease,  not  contrary  to 
e.xpress  restrictions  of  the  original  lease,  may  replenish  the  as- 
sets in  this  respect.^  But  a  surrender  of  the  lease  by  the  exec- 
utor or  administrator  being  absolutely  accepted  by  the  lessor, 
without  any  reservation  of  a  right  to  sue  the  representative,  or 
to  prove  against  the  decedent's  estate  in  case  of  any  possible  loss 
occasioned  by  letting  the  premises  at  a  reduced  rent,  the  lease 
terminates,  and  all  liability  upon  the  covenants  thereof,  and  no 
further  rent  need  be  paid.^ 

As  respects  a  liability  for  rent  more  generally,  the  exec- 
utor or  administrator  is  chargeable  with  rent  in  arrear  at  the 
time  of  his  decedent's  death. 5  The  action  of  debt  lay  at  common 
law  for  the  rent  of  lands  demised,  whether  for  life  or  for  years 
or  at  will ;  the  right  to  sue  being  founded  either  on  the  contract 
implied  from  privity  of  estate  or  on  the  express  contract  of 
demise.  But  the  right  of  action  on  the  contract  thus  implied  is 
transferred  with  the  estate  ;  whereas  the  lessee  under  an  express 
contract  cannot  discharge  himself  from  liability  by  his  own  act.^' 

'  Deane  ?■.  Caldwell,   127  Mass.  242.  action  against  his  personal  representa 

See  as  to  assigning  a  lease,  etc.,  supra,  tive.     Greenleaf  z\  Allen,  127  Mass.  248. 

§353-     The  lessor's  executor,  under  a  ^Taylor   Landl.  &  Ten.  §§402-413; 

lease,  still  in  force,  which  covenants  to  Smith,    ib.    11 5-1 19;   i    Schoul.    Pers. 

rebuild  in  case  of  fire,  is  bound  to  re-  Prop.  §  35  ;  3  Mod.  325;  supra,  §  353. 

build,  if  the  premises  are  burned  after  *  Randall   v.    Rich,     1 1     Mass.    494  ; 

the    lessor's    death.      Chamberlain    v.  Dean  7'.  Caldwell,  127  Mass.  242. 

Dunlop,  126  N.  Y.  45.  5  Shepherd  Touch.   178,  483;  Taylor 

^  Damages  for  breaches  of  a  covenant  Landl.  &  Ten.  §  459. 

to  pay  rent,  before  and  after  the  death  *  Rowland  v.  Coffin,    12    Pick.    105. 

of  the  lessee,  may  be  recovered  in  one  Debt  against  the  representative,  whether 

467 


^37^  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

Hence,  as  long  as  the  lease  continues,  and  as  far  as  he  has 
assets,  an  executor  is  held  liable,  in  debt  as  well  as  covenant, 
for  accruing  rent,  and  an  assignment  of  the  term  by  himself  or 
his  decedent  affords,  of  itself,  no  immunity.'  If,  however,  after 
such  assignment  of  the  lease,  the  lessor  has  accepted  rent  from 
the  assignee,  and  recognizes  the  latter  as  his  own  tenant,  debt 
no  longer  lies  against  the  lessee,  or  his  executor  or  administrator, 
as  to  rent  subsequently  accruing ;  though  on  an  express  stipula- 
tion for  the  payment  of  rent  during  the  continuance  of  the  lease, 
an  action  of  covenant  may,  as  we  have  seen,  be  brought.'' 

Executors  and  administrators,  though  considered  assignees  in 
law  of  a  term  demised,  may  waive  or  incur  an  individual  liability 
by  their  own  acts.  Thus,  if  the  executor  of  a  tenant  from  year 
to  year  omits  to  terminate  the  tenancy,  and  continues  to  occupy 
the  premises  from  year  to  year,  he  becomes  liable  personally, 
as  well  as  in  his  representative  capacity,  for  the  rent  accruing 
during  his  occupancy.^  Executors  and  administrators  may  not, 
however,  be  so  charged  with  equal  facility  ;  for,  it  appears,  that 
while  an  executor  will  be  considered  assignee  of  a  term  demised 
to  his  testator  from  the  date  of  probate  and  qualification,  an  ad- 
ministrator only  assumes  such  liabilities  when  he  takes  possession 
of  the  demised  premises,  or  by  other  positive  acts  evinces  his 
intention  to  become  assignee  in  effect.'     But  the  personal  rep- 


to  be   brought  as  for  (/(?/v/  and  detinct  297  ;  Taylor  Landl.  &  Ten.  §  459.     For, 

or  for  detinet  only,  see  Taylor  Landl.  if   the  representative  continues  to  oc- 

&  Ten.  §626.  cupy,  and  the  landlord  abstains  from 

'3  Mod.  325;  Wms.  Exrs.  1753,  giving  notice  to  quit,  an  implied  promise 
1759;  2  Saund.  181;  I  Lev.  127;  to  abide  by  the  original  terms  is  infer- 
Hutchings  jy.  Bank,  91  Va.  68.  As  to  able.  Wms.  Exrs.  1761. 
the  representative's  liability  for  a  ground  *  Pugsley  v.  Aikin,  11  N.  V.  494; 
rent,  of.  Van  Rensselaer  v.  l^latner,  2  Inches  z^.  Dickinson,  2  Allen,  71.  Even 
Johns.  Cas.  17;  Quain's  Appeal,  22  an  unqualified  person  may  by  his  entry 
Penn.  St.  510.  If  the  lease  be  as.signed,  incur  the  responsibility  of  an  executor 
the  landlord,  under  such  circumstances,  de  son  tort.  Williams  v.  Ileales,  L.  R. 
may  sue  the  lessee  or  a.ssignee,  or  both  i  C.  P.  177;  supra,  Pt.  II.,  c.  8.  Tin- 
jointly,  at  his  option.  Taylor  Landl.  &  dal,  C.  J.,  in  WoUaston  v.  Hakewill,  3 
Ten.  §  620.  M.  &  G.  297,  said,  that,  as  to  the  argu- 

^  Taylor  Landl.  &  Ten.  §620;   Wms-  ment  that  the  executor,  by  being  charged 

Exrs.    1752;   Pitcher  7\  Tovey,   }  Mod.  generally  as  assignee,  becomes  thereby 

71.  liable  de  bonis  propriis,   the  answer  is 

^Wollaston  z\   Hakewill,  3   .M.  &  <].  that   he  may,  by  proper  pleading,  dis- 

468 


CHAP,   v.]    LIABILITY   OF  EXECUTOR  OR  ADMINISTRATOR.        §    T^'jd 


resentative  cannot  be  charged  personally  as  assignee,  where  he 
waives  or  surrenders  the  term.  And  this  he  should  do  in  pru- 
dence, if  the  tenancy  is  unprofitable  or  threatens  to  involve  him 
beyond  the  assets  at  his  disposal.  For,  although  an  executor 
or  administrator  may  be  liable  to  respond  to  the  covenants  of  a 
lease  from  the  assets,  he  may  at  any  time  discharge  himself  from 
individual  liability,  by  himself  assigning  over,  if  the  landlord  will 
not  accept  his  surrender  of  the  premises  ;  since  like  every  other 
assignee,  he  is  only  liable  personally  for  breaches  of  covenant 
happening  during  his  own  time,  and  not  for  those  of  his  pred- 
ecessors in  enjoyment  of  the  estate.'  But,  if  he  underlets,  the 
occupation  of  the  under-tenant  is  his  occupation,  and  he  becomes 
personally  liable  as  assignee  of  the  lease.^ 


charge  himself  from  personal  liability 
by  alleging  that  he  is  not  otherwise  as- 
signee than  by  being  executor  of  the 
lessee,  and  that  he  has  never  entered  or 
taken  possession  of  the  demised  prem- 
ises ;  and  from  all  liability  as  executor, 
by  alleging  that  the  term  is  of  no  value, 
and  that  he  has  no  assets.  In  other 
words,  he  should  not  take  issue  on  the 
point  whether  he  is  assignee  or  not,  for 
evidence  that  he  is  executor  proves  the 
affirmative.  And  see  Green  v.  Listo- 
well,  2  Ir.  Law  Rep.  384 ;  Kearsley  v. 
0.\ley,  2  H.  &  C.  896. 

'  Remnant  v.  Bremridge,  8  Taunt. 
191;  Wms.  Exrs.1758;  I  Kay  &  J.  575. 
Assignm.ent  over,  even  to  a  pauper,  will 
discharge  him  as  assignee;  and  in  some 
cases,  if  the  landlord  will  not  accept  a 
surrender  of  the  lease,  it  is  the  repre- 
sentative's duty  to  thus  prudently  rid 
himself  of  the  responsibility.  I  B.  &  P. 
21  ;  4  My.  &  Cr.  1534. 

'  Bull  V.  Sibbs,  8  T.  R.  327  ;  Carter 
V.  Hammett,  18  Barb.  608;  Taylor 
Landl.  &  Ten.  §  461.  The  estate  of  the 
lessee  remains  liable  for  rent  in  due 
course  of  administration  if  the  landlord 
refuses  to  enter.  Martin  v.  Black,  9 
Paige,  641  ;  Copeland  v.  Stephens,  i 
B.  &  A.  593.     As  to  declaring  against 


executor  or  administrator  as  the  as- 
signee, see  Taylor  Landl.  &  Ten.  §  461  ; 
Wms.  Exrs.  1756.  After  entry  the  rep- 
resentative is  charged  for  a  breach  either 
in  his  representative  character  or  as  as- 
signee, lb.  The  representative's  per- 
sonal liability  for  rent  shall  not  exceed 
the  value  of  the  demised  premises ; 
though  it  is  otherwise  with  respect  of 
suing  him  as  assignee  on  a  covenant  to 
repair,  i  Bing.  N.  C.  89 ;  Taylor  Landl. 
&  Ten.  §461;  Sleake  v.  Newman,  12 
C.  B.  N.  s.  116.  The  rules  and  forms 
of  pleading  in  such  actions  were  quite 
technical  and  formal.  Modern  statute 
provisions  are  found  relating  to  this 
subject.  Thus,  in  English  practice,  an 
executor  may  sell  the  leaseholds  and 
assign  them  to  the  purchaser,  and  after- 
wards, of  his  own  authority,  distribute 
the  assets  without  making  provisions  for 
future  breach  of  covenant  in  the  lease, 
and  without  being  subject  to  any  further 
liability.  Dobson  v.  Samuel,  i  Dr.  & 
Sm.  575  ;  Stat.  22  &  23  Vict.  c.  35,  §  27. 
Specitic  performance  on  a  covenant 
for  renewal  has  been  enforced  again.^^t 
an  executor  who  has  entered  and  ad- 
mitted assets.  Stephens  v.  Hotham,  1 
Kay  &  J.  571.  But  see  Philips  v. 
Everard,  5  Sim.  102. 


469 


§   37"*^  KXFXUTORS    AXn    ADMINISTRATORS.  [PART  IV. 

§  377-  Liability  of  Representative  on  Covenants  concerning 
Real  Estate,  etc. —  It  is  laid  down  that  if  the  purchaser  of  real 
estate  dies  without  having  paid  down  the  purchase-money,  his 
heir-at-law  or  devisee  will  be  entitled  to  have  the  estate  paid  for 
by  the  executor  or  administrator,  provided  the  personal  assets 
suffice.'  And  should  the  personal  assets  prove  insufficient  in 
such  cases,  so  that  the  purchase  cannot  be  carried  out,  the  heir 
or  devisee,  as  it  appears,  has  an  equity  to  require  what  personal 
assets  may  be  obtained  to  be  laid  out  in  land  for  his  benefit ;  ^ 
not,  however,  we  apprehend,  to  the  injury  of  creditors  of  the 
decedent,  but  only  so  far  as  to  establish  him,  where  he  was  right- 
fully entitled  to  stand,  with  respect  to  the  representative  him- 
self and  the  character  of  the  decedent's  property.  If  the  pur- 
chase contract,  on  the  other  hand,  was  not,  or  should  not  have 
been  completed,  no  equity  attaches  for  the  purpose  of  effecting 
a  conversion  of  the  property.^  The  rights,  as  between  a  per- 
sonal representative  and  the  heir  of  a  deceased  vendor,  should 
be  correspondingly  treated.'' 

§  37^-  Liability  of  Representative  on  Joint  or  Several,  etc..  Con- 
tracts of  Decedent.  —  At  common  law,  where  there  is  a  joint  ob- 
ligation or  contract  on  one  part,  and  one  of  the  joint  contractors 
or  obligors  dies,  death  puts  an  end  to  his  liability,  leaving  the  sur- 
vivor or  survivors  thereto  alone  suable. ^  But,  on  the  other  hand, 
where  the  contract  or  obligation  was  several,  or  joint  and  several, 
the  personal  representative  of  a  deceased  contractor  or  obligor  may 
be  sued  at  law  in  a  separate  action  ;  not,  however,  jointly  with  the 
survivor,  because  the  latter  is  liable,  as  an  individual,  but  the  former 

'  Wm.s.  Exrs.   1762;   1   Sugd.  V.  &  P.         ^  Wms.   Exrs.    1741;    i    Sid.   238  ;  4 

180;  Whittaker  ?'.   Whittaker,  4   Bro.  Mod.  315;  Godson  71.  Good,  6  Taunt. 

C.   C.  31  ;   Broome  7'.   Monck.  10  Ves.  594;   i  Chitty  PI.  (i6th  Am.  ed.)  58. 
597.  On  the  death  of   one  of  two  joint 

^  lb.  obligees  the  right  of  action  survives  as 

3  Broome  v.  Monck,  10  Ves.  597;  to  the  other.  Hedderly  ?a  Downs,  31 
Curre  v.  Bowyer,  5  Beav.  6.  The  court  Minn.  183  ;  78  Ala.  162.  The  survivor 
cannot  speculate  upon  what  the  de-  of  two  or  more  parties,  plaintiff  or  de- 
ceased party  would  or  would  not  have  fendant,  has  general  consideration, 
done.     lb.  Moses  z'.  Wooster,  115  U.  S.  285. 

*  Wms.  E.xrs.  1763;   i  Sugd.  V.  &  P. 
180. 

470 


CHAP,   v.]     LIABILITY  OF  EXECUTOR  OK  ADMINISTRATOR.        §    379 

only  so  far  as  he  may  have  assets ; '  nor  jointly  with  the  repre- 
sentative of  another  deceased  obligor  or  contractor,  because 
each  representative  is  answerable  for  assets  of  his  own  decedent 
estate,  neither  more  nor  less,  according  as  they  may  suffice.^ 
The  doctrine  of  survivorship,  with  its  unequal  rights  and  lia- 
biUties,  is  in  modern  times  treated  with  disfavor  ;  and  local  stat- 
utes are  found  whose  scope  is  to  make  representatives  liable  to 
suit,  on  the  assumption  that  the  contract  or  obligation  must  have 
been  not  strictly  a  joint  one,  but  joint  and  several,  by  intend- 
ment.^  Equity  affords  reUef  correspondingly,  and  asserts  that 
contracts  joint  in  form  may,  nevertheless,  in  a  correct  inter- 
pretation of  what  the  parties  intended  be  taken  to  be  joint  and 
several,''  though  not  so  as  to  do  violence  to  a  mutual  intention 
plainly  inconsistent  with  that  presumption.s 

§379-  Liability  of  Representative  of  Deceased  Partner.  —  A 
partnership  contract  being  joint  in  law,  the  rule  of  our  preceding 
section  applies  to  the  case  of  a  partnership  debt ;  subject,  however, 
to  like  statute  qualifications,^  and  similar  remedies  in  equity.  Thus 
it  is  well  settled  that  partners  may  be  sued  iit  equity  on  the  as- 
sumption that  the  partnership  debt  is  both  joint  and  several ;  con- 
formably to  which  theory  the  creditor  may  not  only  reach  assets 
of  a  deceased  partner  in  his  representative's  hands,  should  the  sur- 
viving partner  fail  to  satisfy  his  claim  in  full,  but,  as  the  later 
decisions  hold,  may  pursue  the  assets  of  a  deceased  partner,  as 
matter  of  preference,  leaving  the  latter's  representatives  and  the 
surviving  partner  to  adjust  their  respective  equities  together.^ 

■  May  t'.  Woodward,    i    Freem.  248  ;  '  Liverpool  Bank  v.  Walker,  4  De  G. 

1  Chitty  PI.  58.                                           '  &  J.   24 ;  Vulliamy  v.  Noble.  3  Meriv. 

^Grymest/.  Pendleton,  4  Call.  130.  619;  4   My.   &   Cr.    109;    Devaynes  z: 

^See  Rice  Appellant,  7   Allen,   115;  Noble,  2   Russ.  &  My.  495 ;  Wilkinson 

124  Mass.  219;  Wms.  Exrs.  1740,  Per-  v.  Henderson,   i    My.  &   R.  582.     See 

kins"s   note;  Masten  v.    Blackwell,    15  upon  this  subject  more  fully,  Collyer 

N.  Y.  Supr.  313.  Partn.  §§  576-580  ;  Story  Partn.  §  362  ; 

■•Wms.     Exrs.     1746;    Primrose    v.  i    Story  Eq.  Jur.  §676;    Wms.   Exrs. 

Bromley,  i  Atk.  90.     And  see  Thorpe  1743,  1744,  and  cases  cited.     The  ad- 

V.  Jackson,  2  Y.  &  Coll.  533.  justment  or  winding-up  of  partnership 

^  Sumner    v.    Powell,    2    Meriv.    30 ;  affairs  belongs  to  equity  courts.     As  to 

Rawstone  z/.  Parr,  3  Russ.  424.  \\-inding  up  a  trade  with  the  surviving 

"  Sampson  z/.  Shaw,  loi  Mass.  145.  partner,  see  si(/>ra,  §§325,  326.     If  as- 


^    3S0  KXECITOKS     VNP      VOMlNlSrKArOKS.  [PAKl    IV. 

§  3Sc>.  Liability  of  Represeutati%'e  of  Deceased  Stockholder.  — 
The  personal  liability  of  stockholders  is  usually  dorinevi  speci- 
fically by  the  general  or  special  act  under  which  that  corpora- 
tion was  created.  A  personal  liability  beyond  the  value  of  one's 
own  shares  is  not  usually  incurred,  however,  after  the  capital 
stock  has  been  paid  in  ;  and  whether  the  personal  representa- 
tive of  a  deceased  shareholder  should  suffer  stock  to  be  lost  to 
the  estate,  rather  than  pay  assessments  thereon,  or  assume  cor- 
porate debts,  is  mainly  a  question  of  due  care  and  good  faith.' 
But,  as  to  enforcing  a  personal  liability  on  the  part  of  the  de- 
cedent, the  doctrine  of  the  English  equity  courts  is,  that  the 
executor  or  administrator  of  a  deceased  shareholder  succeeds 
presumably  to  the  full  liability,  as  well  as  to  the  rights  of  the 
latter,  such  as  there  may  be  ;  and  even  that  for  liabilities  in- 
curred in  respect  of  the  shares  since  the  death  of  the  share- 
holder, the  representative  must  respond  out  of  the  assets.'  The 
American  doctrine,  so  far  as  developed,  pursues  apparently  the 
same  doctrine,  to  at  least  the  extent  that  executors  and  adminis- 
trators of  deceased  shareholders  become  liable  prima  facie  in 
their  representative  capacity,  as  for  other  debts  of  the  de- 
ceased.J 

Hence,  assets  of  the  estate  of  the  deceased  shareholder  may 
be  reached  in  equity  in  order  to  enforce  contribution  among 
shareholders  for  losses  sustained  by  the  company  ;  and  this  af- 
ter a  procedure  analogous  to  that  which  obtains  in  adjusting 
partnership  profits  and  losses.*  But.  even  where  stockholders 
are  made  liable  by  the  incorporating  act  beyond  the  \-alue  of  their 

sets  of  a  partnership  in  possession  of  ^SMfm,  §318. 

one  of  the  partners  at  his  death  are  sold  *  Eaird's  Case,  L.  R.  5  Ch.  7^5,  and 
by  his  executor  or  administrator  for  cases  cited.  The  charter  or  act  of  in- 
less  than  their  value,  and  the  amount  corporation  must  be  examined  10  see 
received  is  accounted  for  as  assets  of  the  whether  the  habiUty  is  made  less, 
estate,  the  surNJving  partners  on  a  bill  *Gre\v  r.  Breed.  10  Met.  679,  nwr/ru, 
in  equity  against  the  executor  can  only  KipJey  t*.  Sampson,  10  Kck.  371  ;  New 
receive  their  proportion.  Bradley  r.  England  Bank  t.  Stockholders,  6  R.  1. 
Brigham.  144  Mass.  iSi.     A  sur\-iYing  154. 

partner  has  no  such  claim  against  the  *  Cases,   s-tt/-m  :    Bulmer's    Cise,   }} 

estate  as  can  be  proved  or  barret!  until  Beav.  435. 
the  partnership  is  wound  up.     Blakely 
V.  Smock.  96  Wis.  6u. 


CHAP,   v.]     LIABILITY   OF  EXECUTOR  OK   ADMINISTKATOK.         §    38  I 

respective  shares,  for  debts  of  the  corporation,  it  is  not  unfre- 
quently  provided  that  the  execution  shall  issue  against  the  cor- 
poration, and  be  returned  unsatisfied  before  shareholders  can 
be  thus  held  jointly  and  severally  liable  for  the  debts  ; '  and 
corporate  debts  are  usually  to  be  enforced  directly  against  the 
corporation,  whose  capital  stock,  represented  by  the  certificates 
of  shares,  and  invested  in  the  corporate  business,  is  the  proper 
and  primary  fund  from  which  all  such  liabilities  should  be  made 
good. 

It  is  held  in  England  that  the  personal  representative  who 
accepts  new  shares  of  a  corjDoration  should  be  put  on  the  books 
in  his  individual  and  not  his  representative  character,  and  be 
held  personally  liable  in  respect  of  them.^ 

§  381.  Exoneration  of  Personal  Property  specifically  bequeathed. 
—  Where,  by  the  terms  of  a  will,  chattels  are  specifically  be- 
queathed, such  as  a  diamond  ring,  a  silver  cup,  or  a  stock  of 
wines,  it  is  to  be  presumed  that  the  intention  was  to  bequeath 
them  by  an  unencumbered  title  ;  and  hence,  if  at  the  testator's 
death  the  ring  or  cup  be  found  pawned,  or  the  wines  prove  to 
be  on  storage  or  in  some  government  warehouse  liable  to  cus- 
toms duties,  the  executor  should  redeem  or  exonerate  the  thing 
at  the  expense  of  the  estate,  and  deliver  it,  free  of  charge,  to 
the  legatee.^ 

But  the  just  intention  of  the  testator,  as  manifested  by  the 
will,  should  prevail  in  all  such  cases  where  this  presumption  is 
overcome.  Nor  is  the  thing  specifically  bequeathed,  unless  the 
will  so  prescribes,  to  be  put,  at  the  cost  of  the  estate,  in  better 
condition  than  the  testator  left  it ;  but  the  legatee  must  take  it 
for  better  or  worse,  just  as  the  testator  might  have  handed  it 
over  on  his  death.     Stock  specifically  bequeathed  is  bequeathed 

'Cutright    v.   Stanford,  81    111.    240.  are  not  the  same  in  England  as  in  most 

And  see  Thompson  on  Stockholders,  of  the  United  States.  See  J■^<;^;•(^,  §  223. 
§§  250-254.  3  Knight  v.  Davis,  3  My.  &   K.  558  ; 

'Leeds  Banking  Co.,  /?c%  L.  R.  i  Ch.  Stewart  v.  Denton,  4  Dougl.  219.     So, 

231.     Turner,  L.  J.,  put  the  case  as  sim-  too,  we  may  suppose,  if  the  thing  speci- 

ilar  to  that  of  an  executor's  carrying  on  fically  bequeathed  had  been  placed  on 

atrade  with  assets.     But  the  niles  as  to  storage  by  the  decedent  or  left  to  be 

permitting  a  trust  investment  in  stock  mended. 

473 


§   3^2  EXECUTORS    AND    ADMINISTRATORS.  [fART  IV. 

as  with  a  clear  title  ;  but  so  as  to  relieve  the  estate,  neverthe- 
less, from  the  whole  burden  of  further  assessments,  as  well  as 
to  deprive  it  of  the  benefit  of  subsequent  dividends.'  For,  the 
rule  is,  that  the  bequest  is  taken  by  the  legatee  with  all  the  in- 
cidental advantages  and  disadvantages  of  dominion,  unless  the 
will  should,  as  it  may,  speak  differently.^  If  the  thing  had 
ceased  to  exist  at  the  testator's  death,  or  if  no  title  could,  under 
the  circumstances,  devolve  upon  his  personal  representative,  the 
bequest  would  prove  of  no  avail,  for  the  estate  would  not  be 
bound  to  supply  an  equivalent.^  All  this  is  presumed  to  be  in 
accordance  with  what  a  testator  intended  by  his  specific  bequest, 
and  conforms  to  general  doctrines  applicable  to  title  derived 
under  a  will. 

§  382.  Liability  of  Personal  Representative  in  Respect  of  his 
Own  Acts ;  Negligence  or  Bad  Faith,  Torts,  etc.  —  Scc07id.  To 
dwell  now  more  especially  upon  the  liability  which  a  personal 
representative  incurs  in  respect  of  his  own  acts  while  adminis- 
tering the  estate.  The  course  of  investigation  in  former  chap- 
ters has  shown  us  that  every  executor  or  administrator  is  bound 
to  observe  not  only  good  faith,  but  a  certain  degree  of  care  and 
diligence,  properly  estimated  according  to  the  circumstance  of 
serving  with  or  without  compensation,  and  fixed  at  "  ordinary  " 
in  the  one  instance  and  "slight"  in  the  other.  For  losses  oc- 
casioned by  his  gross  negligence  or  wilful  default  he  is,  there- 
fore, personally  liable  ;  and  usually,  too,  in  the  United  States 
(since  here  the  personal  representative  is,  as  a  fiduciary,  enti- 
tled to  compensation),  for  all  ill  consequences  suffered  by  the 
estate  through  his  failure  to  bestow  ordinary  care  and  diligence/ 
For  losses  occasioned  through  his  bad  faith,  too,  the  represen- 
tative is  personally  liable.^  Furthermore,  an  executor  or  ad- 
ministrator is  bound  to  perform  his  whole  duty  according  as  the 


'  Armstrong  r.  Burnet,  20  Beav.  424  ;  queathed;    Hickling  z'.   Boyer,  3  Mac. 

Day  V.  Day,  i  Dr.  &  Sm.  261  ;  Addams  &  G.  635. 
V.  Ferick,  26  Beav.  384.  ^  See  §461,  as  to  specific  legacies. 

^  Wms.  Exrs.  1764,  commenting  upon         *  Siipni,  §§313-315- 
Marshall  7\  Ilolloway,  5  Sim.  196,  where         ^  lb. 
a  leasehold  interest  was  specifically  be- 

474 


CHAP,   v.]    LIABILITY   OF  EXECUTOR  OK   ADMINISTRATOR.        v?    J5S4 

law  or  a  testator's  will  may  have  directed  ;  and  he  cannot,  after 
accepting  the  trust,  avoid  any  of  the  responsibilities  which  prop- 
erly attach  to  the  office.' 

In  general  it  may  be  said  that  for  any  mere  personal  tort  com- 
mitted by  an  executor  or  administrator  his  representative  capac- 
ity does  not  shield,  but  he  is  liable  personally  to  those  aggrieved.^ 

§  3^3-    Common-Law    Doctrine   as  to    Devastavit  or  Waste. — 

This  standard  of  liability  is  that  adopted  by  courts  of  equity  and 
probate  in  concurrence  with  the  common  sense  of  mankind. 
But  the  common  law  appears  to  have  pursued  a  somewhat  dif- 
ferent theory  in  dealing  with  such  matters ;  an  odd  and,  indeed, 
an  illiberal  one.^  In  equity  and  probate  practice,  at  the  present 
day,  the  executor  or  administrator  becomes  bound  to  account 
for  his  proceedings  under  his  trust,  and  allowance  or  disallow- 
ance of  items  and  transactions  is  made  upon  the  just  maxims  of 
responsibility  which  we  have  stated.''  But  the  common  law 
long  recognized  direct  remedies  against  the  personal  represen- 
tative, founded  upon  the  suggestion  of  a  devastavit  on  his  part. 5 
A  violation  of  duty,  by  the  executor  or  administrator,  such  as 
renders  him  personally  responsible  for  mischievous  consequences, 
the  law  styles  a  devastavit ;  that  is,  a  wasting  of  the  assets  ;  or, 
to  take  the  definition  of  the  courts,  a  mismanagement  of  the 
estate  and  effects  of  the  deceased,  in  squandering  and  misapply- 
ing the  assets  contrary  to  the  duty  imposed  on  him.  For  a 
devastavit,  the  executor  or  administrator,  it  is  said,  must  answer 
out  of  his  own  means,  so  far  as  he  had  or  might  have  had  assets 
of  the  deceased.'' 

§  384.  The  Essential  Principle  of  Devastavit  is  of  General  Ap- 
plication. —  The  essential  principle  at  the  basis  of  this  rule  of 
devastavit  operates,  doubtless,  whenever  and  wherever  the  peiv 
sonal  representative  should  personally  respond  for  his  official 
conduct ;  and  whether  the  maladministration  be  wanton,  wilful, 

'  Booth  z/.  Booth,  i  Beav.  125  ;  Jacob,         ''  See  Part  VII.,  as  to  accounts,  etc. 
198;  WilHams  v.  Nixon,  2  Beav.  472.  '  Wms.  Exrs.  1985;  appendix, /c^j-/. 

-  §  385.  ^  Bac.  Abr.  Exors.  L.  i  ;  Wms.  Exrs. 

^^•M/rrt,  §  315.  1796. 

475 


§    3-^4  KXECUTORS    AND    ADMINISTRATORS.  [pART  IV. 

and  fraudulent  on  his  part,  or  founded  in  inexcusable  careless- 
ness, and  whether  the  misconduct  be  active  or  passive,  so  long 
as  those  interested  in  the  assets  suffer  thereby.'  How  wide  the 
scope  of  this  doctrine,  we  have  already  seen,  while  investigating 
the  general  rights  and  powers  of  the  personal  representative. 
We  shall  see  its  further  application  hereafter,  when  we  come  to 
consider  the  payment  of  debts  and  claims  against  the  estate,  the 
satisfaction  of  legacies,  and  the  transfer  or  distribution  of  the 
final  residue  ;  when  we  observe  the  performance  of  his  official 
duties  under  peculiar  aspects,  as  where  the  estate  is  insolvent, 
or  when  it  becomes  needful  and  proper  for  him  to  take  the 
charge  of  his  decedent's  real  estate  or  sell  it ;  with  reference  to 
the  duty  of  accounting,  as  well  as  obeying  the  mandates  of  a 
court ;  and,  in  short,  throughout  the  entire  administration  of  the 
estate,  and  so  long  as  he  pursues  the  official  trust  reposed  in 
him.  And  what  is  thus  observable  of  a  sole  original  executor 
or  administrator  invested  with  plenary  authority,  will  be  found 
to  hold  true,  mutatis  mutandis,  in  the  qualified  trusts  to  be 
hereafter  specially  considered,  as  where  the  appointment  is  not 
original  and  complete,  or  where  two  or  more  serve  together  in 
the  office.  For  we  here  apply  a  broad  principle  which  pervades 
the  whole  law  of  bailments  and  trusts,  and  underlies  the  per- 
formance of  duty  by  officers  public  or  private.  Official  respon- 
/  sibility,  in  a  word,  involves,  in  any  station  of  life,  the  perform- 
ance of  one's  duty  :  first,  honestly  and  uprightly,  and  next,  with 
the  exercise  of  a  reasonable  degree  of  care  and  diligence  accord- 
ing to  circumstances,  the  nature  of  the  trust  imposed,  and  the 
limitations  of  authority  prescribed  by  law.' 

'  Executors  and  administrators  may  been  mentioned;  and  Williams  speci- 
be  gviilty  of  a  devastavit,  not  only  by  a  fies  particularly,  paying  too  much  for 
direct  abuse  by  them,  as  by  spending  or  the  funeral,  paying  debts  out  of  order 
gonsuming,  or  converting  to  their  own  to  the  prejudice  of  those  of  higher  rank, 
use  the  effects  of  the  deceased,  but  also  and  assenting  to  the  payment  of  a  leg- 
by  such  acts  of  negligence  and  wrong  acy  when  there  is  not  a  fund  sufficient 
administration  as  will  disappoint  the  for  creditors.  Wms.  Exrs.  1797. 
claimants  on  the  assets.  Bac.  Abr.  ^  It  has  been  observed  by  equity 
Exors.  L.  Among  examples  of  the  for-  courts  that  two  principles  influence  their 
mer  kind,  a  collusive  sale  or  pledge  of  course,  with  respect  to  the  personal  lia- 
the  assets  may  be  cited.  Of  the  latter  bility  of  executors  and  administrators 
kind,  numerous  instances  have  already  for  their  official  conduct:  (i)  That  in 

476 


CHAP,    v.]    LIABILITY  OF  EXECUTOR   OR   AOMI XISTRATOK.         ^5    385 

§  385.  Representative  not  to  be  sued  in  such  Capacity  for  his 
own  "Wrongful  Act ;  Qualifications  of  the  Rule.  —  An  executor  or 
administrator  cannot  be  sued  in  his  representative  character,  for 
his  own  wrongful  act  committed,  so  as  to  inflict  personal  injury 
upon  another,  while  administering  the  estate.  For,  if  liable  at 
all,  the  act  is  outside  the  scope  of  his  official  authority,  and  he 
must  be  sued  and  held  responsible  as  an  individual.'  But,  in 
some  instances,  where  the  gist  of  the  offence  consists  in  a  con- 
tinuing wrongful  detention  of  the  plaintiff's  goods,  the  wrong 
having  really  originated  with  the  decedent,  a  suit  may  be  brought, 
if  the  plaintiff  so  elect,  against  the  executor  or  administrator  in 
his  representative  capacity.^  Statute  directions  on  such  points 
seem  desirable ;  for  the  old  common  law  is  not  explicit  enough, 


Older  not  to  deter  persons  from  under- 
taking these  offices,  the  court  is  ex- 
tremely hberal  in  making  every  possible 
allowance,  and  cautious  not  to  hold 
executors  or  administrators  Hable  upon 
slight  grounds.  (2)  That  care  must  be 
taken  to  guard  against  an  abuse  of  their 
trust.  Powell  v.  Evans,  5  Ves.  843 ; 
Tebbs  V.  Carpenter,  i  Madd.  298 ; 
Raphael  v.  Boehm,  13  Ves.  410.  As  to 
imputation  of  waste  from  one's  neglect 
to  file  an  inventory,  see  Orr  v.  Kaines, 
2  Ves.  Sen.  193.  And  as  to  accounting, 
see  Part  ^\\.,  post. 

'  Boston  Packing  Co.  z'.  Stevens,  12 
Fed.  Rep.  279;  Thompson  v.  White, 
45  Me.  445 ;  Parker  v.  Barlow,  93  Ga. 
700. 

^  Trover  will  lie  against  the  represen- 
tative personally,  for  a  conversion  by 
him,  though  the  property  came  to  him 
with  the  estate  of  his  decedent.  Walter 
V.  Miller,  i  Harr.  (Del.)  7.  And  .see 
Denny  v.  Booker,  2  Bibb,  427  ;  Thomp- 
son V.  White,  45  Me.  445  ;  Clapp  v. 
Walters,  2  Tex.  130 ;  supra,  §  372.  In 
some  instances  an  action  for  money  had 
and  received  may  be  more  appropriate. 
See  Farrelly  v.  Ladd,  i  o  Allen,  1 27.  For 
the  misapplied  balance  of  a  fund  en- 

477 


trusted  to  him  by  a  debtor  of  the  es- 
tate, for  discharging  the  debt  thus  ow- 
ing, the  personal  representative  is  liable, 
not  in  his  official,  but  in  his  individual, 
character ;  and  for  such  balance  the 
debtor  may  sue  as  for  money  received 
by  the  defendant  to  the  plaintiff's  use. 
Cronanz^.  Cutting,  99  Mass.  334. 

Trover  lies,  under  the  statutes  of 
some  States,  against  an  executor  or  ad- 
ministrator in  such  capacity,  for  a  con- 
version, as,  e.g.,  of  bonds  and  mortgages, 
by  his  testate  or  intestate.  Terhune  v. 
Bray,  16  N.  J.  L.  54.  And  it  is  proper 
to  treat  such  things  as  personal  prop- 
erty, whatever  may  have  been  the  earlier 
rule.  Cf.  Chaplin  7'.  Burett,  12  Rich. 
284. 

"The  principles  adopted  seem  to  be 
that,  where  the  deceased,  by  a  tortious 
act,  acquired  the  property  of  the  plain- 
tiff, as  by  cutting  his  trees  and  convert- 
ing them  to  his  own  use,  or  by  convert- 
ing his  goods  to  his  own  use ;  although 
no  action  of  trover  or  trespass  will  lie ; 
yet  the  law  will  give  the  plaintiff  some 
form  of  action  to  recover  the  property 
thus  tortiously  obtained.  Putnam,  J., 
in  Cravath  v.  Plympton,  13  Mass.  454. 


^    7^86  FCXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

and  its  theory,  that  the  right  of  action  dies  with  the  offender, 
has  been  discarded  to  a  great  extent  by  modern  legislatures.' 

v^  386,  Instances  of  Devastavit  considered;  Effect  of  an  Arbi- 
tration or  Compromise  of  Demands.  —  Only  a  few  special  instances 
of  liability  for  devastavit  or  waste,  at  the  common  law,  need  here 
be  specially  considered  ;  for  the  general  doctrine  is  sufficiently 
applied  under  appropriate  heads  in  other  chapters. 

At  common  law,  the  arbitration,  compromise,  or  release  of  a 
debt  or  claim  due  the  estate,  was  regarded  as  a  waste  on  the 
part  of  the  personal  representative,  if  it  resulted  in  loss  to  the 
estate.  Concerning  arbitration,  the  point  appears  to  have  been 
stated  in  the  old  books  quite  sternly  ;  ^  as  to  compromise,  how- 
ever, later  qualifications  were  admitted,  applying  in  good  reason 
to  either  act,  which  the  court  of  chancery  saw  fit  to  insist  upon, 
and  which,  as  to  either  compromise  or  arbitration,  are  now 
usually  insisted  upon.  The  executor  or  administrator  who  com- 
promised a  debt,  so  as  to  receive  less  than  its  full  amount,  was 
still  held  answerable  for  the  whole  ;  and  yet,  if  he  could  show, 
in  exculpation,  that  he  acted  therein  for  the  benefit  of  the  estate, 
he  stood  excused.^  The  universal  test  for  modern  times  should 
be,  whether,  in  compromising  or  submitting  to  arbitration,  the 
representative  acted  with  fidelity  and  due  prudence  ;  ^  but  not  to 
leave  the  doctrine  uncertain  on  this  point,  recent  express  legis- 
lation, both  in  England  and  the  United  States,  greatly  enlarges 
the  powers  of  executors  and  administrators  to  compound  and 
refer  claims  and  demands  to  arbitration  at  their  own  discretion, 
clothing  probate  tribunals  in  numerous  instances  with  express 

'  See  supra,  §  373.     The  lepresenta-  Exors.   L. ;   i  Ld.   Raym.  363,  by  Holt, 

live  is  not   bound  to  prolong  litigation  C.  J.     And    see    Reitzell  v.   Miller,   25 

by  appeal  or  otherwise,  provided  he  acts  111.  67  ;  Yarborough  v.  Leggett,  14  Tex. 

with    becoming  prudence.     104    N.   C.  677;  Nelson  7v.  Cornwell,  1 1  Gratt.  724. 

458.  '  Wms.  Exrs.  1800  ;  Blue  z'.  Marshall, 

^  If  the  executor  submits  a  debt  due  3  P.  Wms.  381  ;   Pennington  v.  Healey, 

to  the  testator  to  arbitration,  and  the  i  Cr.  &  My.  402. 

arbitrators  award  him  less  than  his  due  ;  ■•  See   Coffin  v.  Cottle,  4  Pick.  454  ; 

this,  being  his  own  voluntary  act,  shall  Chadbourn  v.  Chadbourn,  9  Allen,  173; 

bind  him,  and  he  shall   answer  for  the  Eaton  v.  Cole,  i  Fairf.  137;  Kendall  z/. 

full  value  as  assets.     Wentw.  Off.  Ex.  Bates,  35  Me.  357. 
304,    14th   ed.;  3  Leon.    53;    Bac.    ;\br. 

478 


CHAP,   v.]    LIABILITY  OF  EXECUTOR  OK  ADMINISTRATOR.        §   387 

jurisdiction  to  authorize  such  acts  on  their  part,  and  thereby  af- 
ford the  representative  a  more  adequate  immunity. 

§  387.  Compromise  or  Arbitration  of  Claims  ;  Modern  Statutes. 
—  As  a  fair,  speedy,  and  inexpensive  means,  therefore,  of  ad- 
justing doubtful  claims  against  an  estate  and  relieving  the  legal 
representative  from  undue  responsibility,  our  modern  legislation 
permits  of  compromise  and  arbitration  ;  one  or  other  of  which 
causes  is  frequently  preferred  on  both  sides  to  an  uncertain  law- 
suit. Thus  the  English  statute  23  and  24  Vict,  c,  145,  author- 
izes executors  to  compound  and  refer  to  arbitration,  "  without 
being  responsible  for  any  loss  to  be  occasioned  thereby."  '  And 
by  legislative  enactments  in  most  of  the  United  States,  differing 
somewhat  in  detail,  executors  and  administrators  are  empowered 
to  adjust  by  arbitration  and  compromise,  any  demands  in  favor 
of  or  against  the  estates  represented  by  them,  under  previous 
authority  of  the  probate  court.-  This  statute  authority  in  some 
States,  however,  does  not  embrace  claims  against  the  estate, 
but  only  those  in  its  favor,  or  vice  versa  ;  nor  is  the  statutory 
right  to  arbitrate  treated  always  on  the  precise  footing  as  that 
of  compromising  claims. ^  And,  again,  as  under  the  English 
statute  above  cited,  the  right  conferred  by  the  legislature  does 
not  appear  always  to  contemplate  the  direct  intervention  of  the 
probate  court."* 

*  23  &   24   Vict.  c.    145,   §§   30,   34 ;  trators,    2057-2080.     The    practitioner 

Wms.  Exrs.  1801.  should  consult  the  local  code  on  this 

^  Mass.  Gen.  Stats,  c.  loi,  §  10;  subject,  and  local  decisions  construing 
Woodin  V.  Bayley,  13  Wend.  453;  its  provisions.  Under  the  New  York 
Tracy  v.  Suydam,  30  Barb,  no;  Peter's  code  a  claim  for  a  tort  —  e.g.,  the  con- 
Appeal,  38  Penn.  St.  239.  version  of  personal  property  —  is  thus 

^  Reitzell  J'.  Miller,  25  111.  67.  referable.     Brockett  v.   Bush,  18  Abb. 

"•  Kendall    v.    Bates,    35     Me.    357 ;  Pr.   337.     But    only    claims   which    ac- 

Childs  V.  Updyke,  9  Ohio  St.  t^t^t,.     Ar-  crued  or  would   have   accrued   during 

bitration  is  not  in  Texas  a  proper  mode  life.     17   Abb.   N.  Y.  Pr.  374;  cf.  Mc- 

to  establish  a  rejected  claim.     Yarbor-  Daniels  v.  McDaniels,  40  Vt.  340.     So, 

ough  V.  Leggett,  14  Tex.  677.     But  as  too,  19  R.  L  499.     And  see  the  Mary- 

to  the  general  reference  of  disallowed  land  statute  which  does  not  apply  to 

claims,  see  McDaniels  v.  McDaniels,  40  claims  binding  the  executor  or  adminis- 

Vt.  340.     See  also  Ponce  v.  Wiley,  62  trator  personally.     Browne  v.  Preston, 

Ga.  118;  30  Kan.  118;  U.   S.  Digest,  38  Md.  373. 

1st     Series,    Executors    and    Adminis-  Such  statutes,  being  for  a  convenient 

479 


§387 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


This  right  of  arbitration  or  compromise  is  extended  by  local 
legislation  to  other  instances,  and  for  sundry  express  purposes. 
Thus,  in  Massachusetts  and  various  other  States,  arbitrators 
may  be  appointed  to  determine  the  validity  of  a  claim  against 
an  insolvent's  estate  ; '  or,  in  case  of  dispute,  the  executor's  or 
administrator's  personal  claim  upon  the  deceased.^  And  it  is 
also  sometimes  provided  expressly  that  the  supreme  court  may 
authorize  executors  or  administrators  to  adjust,  by  arbitration 
or  compromise,  controversies  arising  between  different  claimants 


and  expeditious  settlement  of  the  estate, 
do  not  sanction  a  composition  deed 
giving  a  long  term  of  payment.  Loper, 
Matter  of,  2  Redf.  (N.  V.)  545. 

The  effect  of  all  such  legislation  is 
mainly  to  sanction  a  course  of  proceed- 
ing on  the  part  of  an  executor  or  ad- 
ministrator, formerly  open  to  him, 
though  at  a  greater  personal  peril.  At 
the  common  law  an  executor  or  admin- 
istrator might  compound  or  release  a 
debt  due  the  estate,  or  arbitrate,  if  he 
could  afterwards  show  that  his  act  was 
beneficial  to  the  estate  ;  but  if  the  arbi- 
trators awarded  less  than  was  due  the 
estate,  or  the  compromise  turned  out 
ill,  he  might  have  to  suffer  personally 
as  for  waste  ;  for,  objection  being  made 
by  parties  interested  under  the  admin- 
istration, he  had  the  onus  of  proving 
that  he  had  acted  judiciously  and  that 
the  estate  had  not  .suffered  in  conse- 
quence. Wms.  Exrs.  1799,  1800,  and 
cases  cited ;  i  Ld.  Raym.  369,  by 
Holt,  C.  J. ;  Wiles  v.  Gresham,  5  DeG. 
M.  &  G.  770;  Blue  V.  Marshall,  3  P. 
Wms.  381;  Nelson  v.  Cornwell,  11 
Gratt.  724  ;  Boyd  v.  Oglesby,  23  Gratt. 
674 ;  Davenport  ?■.  Congregational  So- 
ciety, 22i  Wis.  387  ;  19  Mont.  95;  Alex- 
ander V.  Kelso,  59  Tenn.  311.  A  stat- 
ute which  expressly  extends  the  power 
to  submit  claims  against  the  estate  to 
arbitration  may  yet  leave  claims  again.st 
the  estate  to  be  adjusted  as  at  common 
law.  Wood  V.  Tunnicliff,  74  N.  V.  3S  ; 
Geiger  z'.  Kaigler,  9  S.  C.  401.     As  to 


binding  the  representative  personally 
by  the  award,  see  Wood  v.  Tunnicliff, 
supra.  By  procuring  previous  authority 
from  the  probate  court,  however,  as 
some  of  these  statutes  now  provide,  and 
by  pursuing  its  terms,  the  good  faith  of 
the  executor  or  administrator  is  suffi- 
cient warrant  that  the  arbitration  or 
compromise  will  stand;  and  to  relieve 
him  from  personal  liability  for  ensuing 
consequences  is,  we  may  assume,  the 
general  purpose  of  all  such  legislation, 
even  where  such  permission  from  the 
probate  court  is  not  contemplated. 
Wyman's  Appeal,  13  N.  H.  18,  20,  per 
Parker,  C.  J.;  Chadbournf.  Chadbourn, 
9  Allen,  173;  Chouteau  v.  Suydam,  21 
N.  Y.  179.  Debt  lies  on  a  decree  con- 
firming the  award.  Noyes  v.  Phillips, 
57  Vt.  229.  If  a  party  in  interest 
means  to  attack  a  particular  compro- 
mise obtained  under  probate  sanction, 
as  for  fraud,  he  should  bring  a  bill  in 
equity  or  proceed  specially.  Henry 
County  ?'.  Taylor,  36  Iowa,  259.  See, 
e.g.,  language  of  stat.  23  &  24  Vict.  c.  145, 
§  30,  cited  supra. 

The  general  right  of  an  executor  or 
administrator  to  arbitrate  or  compro- 
mise appears  deducible  from  the  right 
or  duty  of  prosecuting  or  defending  suit.>i 
which  involve  the  interests  of  the  estate 
he  represents.     And  see  §  298. 

'  Gilmore  v.  Hubbard,  12  Cush.  220; 
Green  v.  Creighton,  7  Sm.  &  M.  197. 

=  Mass.  Public  Stats,  c.  136,  §  6. 


480 


CHAP.    V.J     LIABILITY  OF  EXECUTOR  OK  ADMINISTRATOR.         §    388 

to  the  estates  in  their  hands  ;  and  further  provision  is  made  for 
compromising  suits  which  involve  the  validity  of  a  will.' 

§  388.  Release  of  Debt,  Renewals,  etc.,  by  the  Executor  or 
Administrator.  —  English  authorities  establish  that  at  the  old 
law,  if  the  legal  representati\e  releases  a  debt  due  the  decedent, 
or  delivers  up  or  cancels  a  bond  in  which  the  deceased  was 
named  obligee,  or  takes  a  new  obligation  expressed  to  himself 
personally,  or  settles  a  suit  upon  consideration,  he  shall  hQ,prima 
facie  at  least,  chargeable  as  for  a  devastavit,  for  the  full  con- 
sideration, on  the  theory  that  unless  he  can  produce  such  consid- 
eration in  full,  he  must  have  wasted  it  to  the  disadvantage  of  the 
estate.-  Ordinarily,  a  representative  is  not  called  upon  to  for- 
give or  release  a  debt  or  claim  to  which  he  knows  the  estate  was 
entitled,  without  receiving  some  consideration  ;  and  if  he  does 
so  gratuitously  and  to  the  detriment  of  the  estate,  he  is  liable 
as  for  devastavit,  even  though  he  acted  with  honest  purpose.-^ 

But  modern  statutes  lessen  the  liability  for  releases  given 
upon  sundry  considerations  of  convenience  to  the  estate,  in 
various  prescribed  instances,  on  the  analogy  of  a  compromise. 
Thus,  in  some  States,  probate  courts  or  the  supreme  court,  may 
now  authorize  executors  or  administrators  to  release  and  dis- 
charge, upon  such  terms  and  conditions  as  may  appear  proper, 
any  vested,  contingent  or  possible  right  or  interest  belonging  to 
the  persons  or  estates  represented  by  them,  in  property  real  or 
personal,  whenever  it  appears  for  the  benefit  of  such  persons  or 
estates.'* 


'Mass.  Pub.   Stats,  c.  142,  §§13-16.  estate  to  extend  the  time  of  payment 

Contingent  liabilities  of  an  estate,  e.g.  beyond  that  fixed  by  the  original  con- 

upon  the  indorsement  or  guaranty  of  the  tract.     Landry  v.  Delas,   25   La.  Ann. 

deceased  —  may  be  reasonably  compro-  181. 

mised  so  as  to  facihtate  settlement  and  a  ''Mass.   Gen.  Stat.  c.  ioi,§ii.     See 

final  distribution   of    the    estate.     115  jw/nz,  §  306,  as  to  renewals,  etc. 

Mich.  556.  In  sanctioning  arrangements  between 

-Wms.  Exrs.   1799,  1800 ;  Cro.  EUz.  parties  disputing  a  will,  chancery  j-irw^/i? 

43  ;  I  Ld.  Raym.  368  ;  i  Freem.  442.  does  not  intend  to  bind  infants  or  other 

^People  V.  Pleas,  2  Johns.  Cas.  376.  parties     not     szii   juris.       Norman  v. 

It  is  held  that  the  representative  exceeds  Strains,  29  \V.  R.  744. 

his  proper  functions  when  he  enters  into  A  release    may  involve  a  dez'astavtt, 

an  agreement  wth    the  debtors  of  an  and  yet  not  be  null  and  void.     See  Dav- 

31  481 


§    389  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  389.  Disregarding  the  Bar  of  Limitations  ;  General  and  Special 
Statutes  of  Limitations.  —  To  proceed  with  instances  of  devastavit. 
The  rule  has  heen  laid  down  in  England  and  the  United  States, 
that  it  is  not  devastavit  in  the  personal  representative  to  pay  a 
just  debt,  although  that  debt  be  barred  by  limitations,  and  that 
he  is  not  bound  to  plead  the  statute  when  sued  by  a  creditor. 
This,  however,  was  first  promulgated  as  the  equity  view ; '  for 
courts  of  common  law  appear  to  have  once  inclined  to  hold  to 
the  contrary  ;  ^  while  chancery  left  it  rather  to  the  personal  rep- 
resentative to  satisfy,  at  his  own  discretion,  the  conscience  of  his 
decedent.  The  English  courts  of  equity  will  neither  compel  the 
personal  representative,  when  sued  by  a  creditor,  to  plead  the 
statute  bar  in  favor  of  the  residuary  legatee  or  distributee,  nor 
suffer  such  party  to  set  it  up  by  virtue  of  his  right  to  the  sur- 
plus, unless  proceedings  with  reference  to  the  estate  are  in  such 
form  that  he  is  essentially  a  party  to  the  suit,  and  can  take  this 
advantage  Vvithout  interference. ^  In  the  United  States  the  gen- 
eral rule  is  that  of  the  English  chancery  ;  and  the  executor  or 
administrator  is  permitted  to  satisfy  the  barred  debt,  and  need 
not,  where  acting  in  good  faith,  plead  the  statute  of  limitations.'* 
Local  codes  to  a  certain  extent,  however,  regulate  this  subject ; 
and  the  rule  in  some  States  appears  to  be  that  the  personal  rep- 
resentative can  only  exercise  his  discretion  where  the  statute 

enport    v.    Congregational   Society,    t^t,  4  Kay  &  J.  166;  Lewis  v.  Rumney,  L. 

Wis.  387.  R.  4Eq.  451. 

"  Norton    V.     Frecker,    i    Atk.    526 ;  ^  Shewen  v.   Vandenhorst,   i  Russ.  & 

Stahlsciimidt  7/.  Lett,  i   Sm.  &  G.  415  ;  My.  347;    2   Russ.  &  My.    75;    Wms. 

Wms.  Exrs.  1803;  Trimble  z/.  Marshall,  Exrs.  1804;  Briggs  v.  Wilson,  5  De  G. 

66    Iowa,    233.     Notwithstanding    the  M.  &  G.  12. 

personal   estate  is  insufficient    for  the  -i  Fairfax  v.   Fairfa.x,   2    Cranch,    25; 

debt,  and  the  effect  will  be  to  throw  Wood     Limhations,     §188;    Scott   v. 

the  burden  upon  the  real  estate,  the  rep-  Hancock,   13   Mass.    162;  Hodgdon  v. 

resentative  is  not  obhged  to  plead  the  White,  11  N.  H.  208 ;  Thayer  ?/.  Hollis, 

-Statute.     Lewis  v.  Rumney,  L.  R.  4  Eq.  3  Met.  369;   Ritter's  Appeal,  23  Penn. 

451.     In  this  last -mentioned  case,  Lord  St.  95 ;  Pollard  v.  Sears,  28  Ala.  484; 

Romilly,   M.    R.,   expressed    his    regret  Miller  z'.  Dorsey,  9  Md.  317;  Payne?/, 

that  the  statute  did  not  destroy  the  debt  Pusey,  8  Bush,  564  ;  Walter  v.  Radcliffe, 

instead  of  taking  away  the  remedy  for  2   Desau.  577;  Batson   v.    Munell,    10 

it,  and  thus  leaving  questions  of  discre-  Humph.  301.     He  is  bound  to  plead  the 

tion  so  perplexing  to  arise.  statute    where,    otherwise,    real    estate 

'  See  McCulloch  v.   Dawes,  9  Dow.  must  be  sold  to  pay  the  debt.     90  Ala. 

&  Ry.  43,  disapproved  in  Hill  e/  Walker,  147.     Cf.  L.  R.  4  Eq.  451. 

482 


CHAP,   v.]     LIABILITY  OF  KXECUTOK   OK   AOM INMSTKATOK.         §    3S9 

of  limitations  operates  after  his  appointment,  or  perhaps  since 
the  decedent's  death  ;  and  that  debts,  barred  while  the  decedent 
was  alive,  he  cannot  assume  arbitrarily  the  power  to  pay.' 

In  fact,  distributees  or  residuary  legatees  are  immediately 
interested  in  controversies  of  this  kind.  Chancery  holds  that  the 
representative  may  not  pay  a  debt,  regardless  of  the  bar  of  limi- 
tations, after  a  competent  court  has  declared  that  debt  to  be  out- 
lawed.^ And  under  the  old  chancery  practice  of  England,  after 
the  court  had  made  an  administrative  decree,  showing  the  true 
situation  of  the  claim,  any  such  interested  party  as  a  residuary 
legatee  or  distributee  might  take  advantage  of  that  decree  and 
thus  for  himself  set  up  the  statute.^  Under  modern  practice 
that  rule  still  applies  somewhat  simplified  ;  for  equity  recognizes 
that  the  plea  of  limitations,  especially  for  a  claim  stale  when  the 
decedent  died,  concerns  other  parties  interested  in  the  estate, 
who  ought  not  to  be  concluded  by  the  mere  discretion  of  a  rep- 
resentative.'* 

In  England  and  some  parts  of  the  United  States,  it  is  held 
that  an  acknowledgment  of  the  decedent's  debt  by  the  personal 
representative  will  take  the  case  out  the  statute.-^  But  the  rule 
most  consistent  with  the  policy  of  American  legislation  is,  that 

'  See  Patterson  v.  Cobb,  4  Fla.  481  ;  Ch.  180;  Warren  v.  Poff,  4  Bradf.  260. 
Rector  7'.  Conway,  20  Ark.  79.  But  the  And  see  Woodyard  v.  Polsley,  14  W. 
English  rule  is  to  the  contrary,  recog-  Va.  211  ;  McKinlay  v.  Gaddy,  26  S.  C. 
nizing  no  such  distinction.  Hill  v.  573 ;  33  W.  Va.  476. 
Walker,  4  K.  &  G.  166.  A  testator  The  representative  may  with  pro- 
may  expressly  direct  his  executor  to  priety  pay  a  debt  due  to  himself  from 
disregard  the  statute  of  limitations,  the  estate  upon  which  the  statute  has 
Campbell  v.  Shoatwell,  51  Tex.  27.  run.     Payne  z/.  Pusey,  8  Bush,  564.     Cf. 

Among  other  proceedings  in  equity  §  439a. 
which  constitute  an  exception  to  the  rule         ^  Midgley  v.   Midgley,    (1893)   3    ^l^- 

that  the  executor  or  administrator  alone  282. 

shall  exercise  the  option  of  pleading  the         '  See  Briggs  v.  Wilson,  supra. 
statute,  is  that  of  bringing  a  bill  to  charge         '' Wenham  Re,  (1892)  3  Ch.  59. 
the  real  estate  of  the  deceased  with  the         -  Briggs  v.  Wil.son,  5  De  G.  M.  &  G 

payment  of  debts  due  from  the  estate;  12;  Browning  71.  Paris,  5  M.  &  W.  120 

and  where  this  method  is  pursued,  the  Semmes    v.    Magruder,    10    Md.    242 

heir  or  a  devisee,  residuary  legatee,  or  Northcut  za  Wilkins,    12   B.   Mon.  408 

other  person  in  interest,  is  so  brought  Brewster   v.    Brewster,   52    N.   H.    52 

into  the  suit  that  the  statute  may  be  Shreve  v.  Joyce,  36  N.  J.  L.  44;  Wood 

interposed  by  him.     Wood  Limitations,  Limitations,  §  190. 
§188;   Partridge   v.    Mitchell,    3    Edw. 

4^3 


§    390  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

an  acknowledgment  by  the  representative  does  not  remove  the 
statute  bar  after  it  has  once  operated  on  the  debt,  although  it 
may  suffice  to  suspend  its  operation  if  made  before  the  bar  is 
complete.'  In  any  event,  there  should  be  not  only  a  new  prom- 
ise by  the  executor  or  administrator  in  order  to  charge  the  es- 
tate, but  a  promise  made  by  him  in  his  representative  capacity  ;  ^ 
though  equity  corrects  the  common-law  tendency  to  exclude 
such  acknowledgments,  by  admitting  that  as  a  good  acknowledg- 
ment on  the  representative's  part  which  would  have  been  good 
if  made  by  the  original  debtor.^ 

5J  390.  General  and  Special  Statutes  of  Limitations ;  the  Sub- 
ject continued.  —  While,  however,  the  general  statute  of  limita- 
tions may  be  disregarded,  it  is  held  waste  not  to  plead  the  spe- 
cial bar  which  our  modern  local  legislation  sets  to  demands 
against  the  estates  of  deceased  persons.-*  In  most  of  our  States, 
indeed,  express  provision  is  now  made  that  claims  against  an 
estate  shall  be  presented  within  a  certain  time  after  the  death 
of  the  debtor  or  the  appointment  of  his  executor  or  adminis- 
trator, or  be  forever  barred  ;  and  the  reason  of  such  legislation 
being  sound,  and  the  language  of  the  enactment  explicit,  the 
personal  representative  is  bound  to  comply  with  the  require- 
ment.^  Creditors  themselves  are  thus  put  upon  the  alert ;  and 
their  own  want  of  vigilance  cannot  protect  their  claims  against 
the  statute  barrier,  where  they  have  relied  upon  the  representa- 
tive, and   forborne  to  sue  at  his  request  ;  ^'  though,  where  the 


'  Wood  Limitations,  §  190,  and  cases  Heath  v.  Wells,  5  Pick.  140;   Langham 

cited;  Forney  t.'.   Benedict,  5   Penn.  St.  -'.    Baker,    5    Baxt.    701;    Littlefield   v. 

225;  Foster  v.  Starkey,  12  Cush.  324;  Eaton,  74  Me.  516;  Part  V.,  c.  i. 

McLaren  v.   McMartin,  39  N.   Y.  38.  'lb.     And  see  U.  S.  Dig.  ist  series, 

As  to  acknowledgment   by  only  one  of  Exrs.  &  Admrs.   4472 ;  Wood   Limita- 

two  or  more   executors,  cf.   Scholey  t'.  tions,  §  188,  and  numerous  cases  cited ; 

Walton,    12   M.  &  W.   514;  Shreve  '■.  payment  of  debts,  c.  post;  Ticknor  v. 

Joyce,  36  N.  J.  L.  44.  Harris,    14  N.   H.  272  ;  Harter  z'.  Tag- 

='Scholey  p.    Walton,    12   M.  &   W.  gart,  14  Ohio  St.  122. 

510;  Atkins  V.  Tredgold,  2  B.  &  C.  28.  *Ib.     And  see  Langham  z'.  Baker,  5 

3Cf.  Briggs  V.   Wilson,  5   De  G.   M.  Baxt.  701.    Unless  the  .statute  gives  the 

&  G.  12;  TuUock  z/.  Dunn,  Ry.  &  Moo.  court   power  to  excuse  delay,   reasons 

416.  why  the  creditor  neglected  to  present 

^Thompson  v.  Brown,  16  Mass.  172  ;  his  demand  in  due  time  cannot  be  con- 

484 


CHAP,    v.]     LIABILITY  OF  EXECUTOR  OK   ADMINISTRATOR.         §    39O 

estate  itself  is  ample  and  solvent,  so  that  other  creditors  suffer 
no  disadvantage,  arrangement  specially  made  for  forbearance  or 
delay  in  the  interest  of  the  estate  may  be  sustained  for  a  spe- 
cial creditor's  benefit.' 

How  far  an  executor  or  administrator  is  at  liberty  to  revive 
debts  or  claims  against  the  estate  he  represents,  which  arc  al- 
ready barred,  is  not  clearly  determined.  In  most  cases,  the 
circumstance  of  his  doing  so  is  to  be  attributed,  apparently,  to 
the  conscientious  exercise  of  that  option  which  we  have  seen  is 
now  so  generally  conceded  to  him."  But  if  he  goes  beyond  the 
line  of  legislative  and  judicial  sanction,  and  pays  an  outlawed 
debt  corruptly  or  in  violation  of  the  duty  he  owed  as  personal 
representative  of  the  estate,  he  may  become  liable  personally  as 
for  devastavit?  Equity  will,  under  special  circumstances  of 
hardship,  though  not  usually,  furnish  relief  to  a  party  whose 


sidered.  Sanfoid  v.  Wicks,  3  Ala.  369. 
It  is  held,  as  to  various  statutes  of  this 
character,  that  strictly  equitable  claims 
as  mortgages  are  not  included.  Bradley 
V.  Norris,  3  Vt.  369  ;  McMurrey  z'.  Hop- 
per, 43  Penn.  St.  468 ;  Fisher  v.  Moss- 
man,  II  Ohio  St.  42;  Allen  v.  Moer, 
16  Iowa,  307.  Nor  claims  for  the  re- 
covery of  specific  property.  Andrews  t/. 
Huckabee,  30  Ala.  143.  Or  to  compel 
the  application  of  trust  property  to  the 
payment  of  the  debt  which  it  was  held 
in  trust  to  secure.  Stark  v.  Hunton, 
3  N.  J.  Eq.  300 ;  Pope  v.  Boyd,  22  Ark. 
535.  Nor  claims  originating  after  the 
period  named.  Griswold  ?'.  Bigelow, 
6  Conn.  258.  Nor  claims  in  the  or- 
phans' court.  Yingling  v.  Hesson,  16 
Md.  112.  Nor  so  as  to  debar  the  cred- 
itor from  making  a  set-off  when  sued. 
Lay  V.  Mechanics'  Bank,  61  Mo.  72. 
And  see  Neil  v.  Cunningham,  2  Port. 
271;  Wood  Limitations,  §  189,  and 
cases  cited. 

Such  statutes  properly  reckon  the 
period  from  the  date  of  the  representa- 
tive's appointment ;  for  the  running  of 
such  a  period  between  the  decedent's 
death  and  the  qualification  of  his  exec- 


utor or  administrator  would  work  injus- 
tice to  the  creditor,      t^t^  Ark.  141. 

The  recovery  of  a  claim  against  the 
estate  of  a  deceased  person,  which  origi- 
nates after,  or  from  its  nature  cannot 
be  ascertained  within  the  time  limited 
by  the  court  for  the  exhibition  of  claims, 
is  not  barred  by  its  non-exhibition  with- 
in that  time.  Griswold  ?'.  Bigelow,  6 
Conn.  258 ;  Hawley  ?'.  Botsford,  27 
Conn.  80;  Chambers  %>.  Smith,  23  Mo. 
174.  And  where  such  claim  has  been 
duly  exhibited  to  the  representative, 
and  its  payment  refused,  the  natural 
and  proper  remedy  (in  the  absence  of 
explicit  legislative  provision)  is  to  bring 
an  action  at  law  against  the  representa- 
tive. Bacon  v.  Thorp,  27  Conn.  251. 
As  to  the  representative's  individual  lia- 
bility in  such  cases,  see  Oates  v.  Lilly, 
84  N.  C.  643;  McGrath  v.  Barnes,  13 
S.  C.  328. 

'  Knight  V.  Cunningham,  160  Mass. 
580. 

^  Supra,  same  section. 

^  Where,  for  instance,  he  pays  a  debt 
in  violation  of  the  special  .statute  barrier 
imposed  ujwn  executors  and  adminis- 
trators.     See  supra,   same  section.     If 


485 


§  390^? 


EXECUTORS    AND    ADMINISTRATORS. 


[part  IV. 


claims  against  an  estate  cannot  be  enforced  at  law,  by  reason  of 
his  failure  to  comply  with  the  requirement  of  a  statute  Umiting 
the  time  of  presenting  and  suing  on  the  same ; '  nor  are  express 
reservations  of  this  character  absent  from  such  local  legislation. 


§  2,90a.  The  Subject  continued. —  Whenever  the  statute  of 
limitations  has  begun  to  run  against  a  debt  or  claim  due  the  es- 
tate before  the  death  of  the  decedent,  although  upon  the  very 
day  of  his  death,  the  statute  bar  will  operate,  notwithstanding 
the  personal  representative  sues  for  it  within  a  reasonable  time 
afterwards.-  In  several  States,  however,  this  hardship  is  cor- 
rected by  express  enactment.^  Where,  too,  the  statute  has  be- 
gun to  run  upon  the  decedent's  debt  or  claim  during  his  life,  it 
is  not  suspended  by  his  death,  although  no  representative  has 
been  appointed.^  This  hardship,  once  more,  some  State  legisla- 
tures have  removed.'     As  for  a  debt  or  claim,  however,  against 


one  sets  up  the  bar  of  limitations,  he 
must  make  and  sustain  such  defence 
with  due  diligence  and  good  faith. 
Teague  v.  Corbitt,  57  Ala.  529. 

'  McConnack  v.  Cook,  1 1  Iowa,  267  ; 
Stromo  z>.  Bissel,  20  Iowa,  68 ;  Clifton 
<■'.  Haig,  4  Desau.  330. 

With  reference  to  a  creditor  against 
the  estate,  the  rule,  irrespective  of 
statute  qualifications,  appears  to  be  this : 
death  of  the  debtor  does  not  suspend 
the  ininning  of  the  statute  where  the 
cause  of  action  accrued  before  his  death ; 
but  where  the  cause  of  action  accrues 
after  his  death,  the  statute  does  not  be- 
gin to  run  until  an  executor  or  adminis- 
trator is  qualified,  inasmuch  as  the  cred- 
itor meanwhile  has  found  no  one  whom 
he  could  sue;  and  where  the  cause  of 
action  arises  on  a  contract,  etc.,  by  the 
representative  himself,  the  statute  begins 
to  run  from  the  time  such  cause  of 
action  accrued. 

An  administrator  cannot  be  held 
liable  for  not  paying  a  judgment  more 
than  seven  years  old  which  has  not  been 
revived.  Groves  t.  Williams,  68  Ga. 
598.     A  claim  for  money  held  by  the 


deceased  as  administrator  is  barred  by 
the  statute  of  non-claim.  39  Ark.  577. 
Also  an  information  in  equity  by  the 
attorney-general.  142  Mass.  248.  And 
being  barred  against  the  executor  a 
right  of  action  is  barred  against  the  de- 
visee. Fowler  z:  True,  76  Me.  43.  No 
exception  as  to  persons  under  disability 
can  be  made  if  the  statute  does  not 
make  it.  Morgan  v.  Hamlet,  113  U.  S. 
449;  76  Me.  196.  Secured  claims  are 
meant  as  well  as  unsecured.  62  Tex. 
375.  But  cf.  98  Ind.  499.  Notice  by 
the  executor  or  administrator  of  his  ap- 
pointment is  in  many  States  a  pre-requi- 
site  to  the  running  of  this  special 
statute.  And  by  some  codes  the  repre- 
sentative must  be  notified  liefore  he  can 
be  sued.     76  Me.  17. 

-  Penny  r.  Brice,  18  C.  B.  N.  s.  393. 

^  Wood  Limitations,  §§  193,  196. 

•'  Davis  V.  Garr,  6  N.  Y.  124  ;  Burnett 
-'.  Brian,  6  N.  J.  L.  377  ;  Hall  v.  Deally, 
7  Bush,  687  ;  Baker  v.  Brown,  18  111. 
91  ;  Jackson  z'.  Ilitt,  12  Vt.  285;  Wood 
Limitations,  §  194. 

5  Wood  Limitations,  §  196,  and  ap 
pendix.      A    certain   period  is    usually 


486 


CHAP,   v.]     LIABILITY  OF  EXECUTOR  OK   ADM  IMSTKA  TOR.      §    390/' 

which  the  statute  had  not  commenced  to  run  during  the  credit- 
or's or  claimant's  life,  it  will  not  begin  to  run  against  his  estate 
until  the  executor's  or  administrator's  appointment  and  qualifica- 
tion ;  and  this  upon  the  principle  that  there  was  no  person  capa- 
ble of  suing  for  it.'  This,  once  more,  is  a  rule  subject  to  the 
manifest  direction  of  the  legislature  upon  a  construction  of  local 
statutes.  An  acknowledgment  or  partial  payment  made  to  the 
executor  or  administrator  by  a  debtor  to  the  estate  will  take  the 
debt  out  of  the  statute  of  limitations.^ 

The  rule  of  ec|uity  appears  to  be  the  same  as  that  of  law  as  to 
the  running  of  the  statute  bar  against  claims  due  the  estate  ; 
but  the  executor  or  administrator  cannot,  by  deferring  probate, 
take  personal  advantage  of  a  debt  owing  from  himself  to  the  es- 
tate he  represents  ;  and  in  various  cases  of  fraud  or  mistake, 
equity  makes  an  exception  to  the  general  rule,  that  where  time 
has  begun  to  run  in  the  decedent's  lifetime  it  shall  not  be  sus- 
pended between  the  date  of  his  death  and  the  date  when  the 
representative  qualifies.^ 

It  still  remains  a  subject  for  judicial  decision  as  to  how  far  an 
executor  or  administrator  becomes  liable  personally  as  for  a  dev- 
astavit, if  he  allows  time  to  run  in  favor  of  a  debtor  and  against 
the  estate  he  represents  ;  but  it  would  appear  that,  for  culpable 
neglect  or  bad  faith  on  his  part  producing  this  result,  he  may 
be  held  personally  liable.'* 

§  390(^.  The  same  Subject.  —  It  may  be  questioned  whether 


allowed  the  representative  after  his  ap-  Townsend   v.    Ingersoll,    12    Abb.    Pr. 

pointment  to  bring  suit,  by  local  enact-  (N.  Y.)  N.  s.  354.     A  creditor  recover- 

ments.  ing  judgment  within  the  two  years  pe- 

"  Burdick  v.  Garrick,  L.  R.  5  Ch.  233 ;  riod  limited  by  statute,  the  execution  on 
Clark  V.  Hardman,  2  Leigh,  347 ;  An-  the  judgment  not  being  satisfied,  can- 
drews  v.  Hartford  R.,  34  Conn.  57;  not  sue  upon  the  judgment  after  the  two 
Shennan  z'.  Western  R.,  24  Iowa,  515;  years  expire.  134  Mass.  115. 
Wood  Limitations,  §  194,  where  this  ^  Wood  Limitations,  §  199;  Brooks- 
doctrine  is  discussed  with  reference  to  bank  v.  Smith,  2  V.  &  C.  58 ;  Ingle  v. 
statute  actions  by  the  executor  or  ad-  Richards,  28  Beav.  366 ;  Barfield  71. 
ministrator  for  causing  the  death  of  his  King,  29  Ga.  288. 
testate  or  intestate.  ^12   Mod.   573;    Wood   Limitations, 

^  Martin  v.  Williams,  17  Johns.  330;  §  197. 
Jones  V.  Moore,  5   Binn.  573.     And  sec; 

487 


§    392  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

an  executor  or  administrator  will  be  permitted  to  allege  his  own 
wrong  so  as  to  have  time  run  in  his  favor.  But  the  statute  of 
limitations  does  not  begin  to  run  in  his  favor  as  against  a  claim 
for  damages  occasioned  by  his  negligence  in  collecting  what  was 
due  the  estate,  from  the  time  his  letters  issue  but  at  best  only 
from  the  time  of  loss.'  Under  some  of  our  codes  the  acknowl- 
edgment by  the  executor  or  administrator  of  a  debt  against  the 
estate  and  the  ranking  of  it  by  the  probate  court  suspends  pre- 
scription ;  this  being  the  preliminary  which  dispenses  with  suit 
by  a  claimant.-  And  the  statute  which  bars  all  claims  which 
are  not  sued  against  the  estate  within  a  certain  period  refers 
naturally  to  claims  against  the  deceased  and  not  to  those  arising 
upon  some  contract  with  his  representative  after  his  death.^  A 
representative  who  promises  to  pay  regardless  of  the  statute 
may  bind  himself,  but  he  does  not  bind  the  estate,  nor  the  sur- 
eties on  his  bond.' 

This  policy,  however,  of  barring  out  claims  which  are  tardily 
prevented  and  enforced  is  not  so  much  to  exclude  them  as  to 
allow  the  estate  to  be  expeditiously  settled  and  distributed  ;  and 
hence  new  assets  or  a  new  surplus  to  distribute  might  change 
the  face  of  the  situation. 

§  391.  Opportunity  to  ascertain  ■whether  the  Estate  is  Insol- 
vent.—  An  executor  or  administrator  is  usually  allowed  a  rea- 
sonable time  for  ascertaining  whether  the  estate  can  meet  its 
obligations.  Hence  we  find  local  statutes  forbidding  suits  to  be 
brought  against  the  representative  within  a  specified  time  (as 
for  instance,  a  year)  unless  it  be  for  some  demand  that  would 
not  be  affected  by  the  insolvency  of  the  estate  ;  or  after  the 
estate  has  been  represented  insolvent. ^ 

^  392.  Instances  of  Devastavit  continued ;  disregarding  the 
Statute  of  Frauds.  —  While  the  bar  of  limitations  may  thus  be 

'  Harrington  v.  Keteltas,  92  N.  Y.  366;  Robinson  v.  Hodge,  117  Mass. 
40.  224. 

^  Johnson  z/.  Waters,  in  U.  S.  640.  'See    Studley  v.   Willis,    134    Mass. 

3  Coburn  -'.  Harris,  58  Md.  87.  155  ;   116  Mass.  435. 

"■  Judge  of  Probate  v.  Ellis,  63  N.  H. 

488 


CHAP,    v.]     LIABILITY  OF  EXECUTOR  OK   ADMINISTRATOR.         §    394 

disregarded,  in  the  case  of  demands  once  binding,  an  executor 
or  administrator  exercises  no  such  option  as  to  debts  or  claims 
which  never  had  a  binding  force,  since  the  law  invests  him  with 
no  authority  on  the  decedent's  behalf  to  dispense  favors  or  per- 
form obligations  simply  moral.  Hence,  he  cannot  pay  a  debt 
that  accrued  under  a  contract  that  is  invalid  because  within  the 
statute  of  frauds ;  and,  if  he  does  so,  he  is  chargeable  with  dev- 
astavit ;  though  the  promise  may  be  said  to  create  a  personal 
liability  on  his  part.' 

§  393.  Devastavit  when  excused  by  Concurrence,  Acquiescence, 
etc.,  of  those  injured  thereby.  —  The  concurrence  or  acquiescence 
of  those  injuriously  affected  by  the  devastavit  of  an  executor  or 
administrator  will,  agreeably  to  general  maxims,  release  the  lat- 
ter party  from  further  responsibility  for  the  injurious  act  or 
transaction  ;  and  so,  doubtless,  their  release  or  acquittance  as 
for  satisfaction  and  indemnity  rendered  by  a  mutual  private 
arrangement.  But  a  court  of  equity  or  probate  is  at  liberty  to 
inquire  into  all  the  circumstances  which  induced  such  action  on 
their  part,  and  ascertain  whether  their  conduct  really  amounts 
to  such  sanction,  ratification,  or  acquittance  as  ought  justly  to 
relieve  the  representative  from  further  liability.^ 

§  394-  Complicity  of  third  Persons  in  the  Devastavit  renders 
them  liable.  —  Whenever  an  executor  or  administrator  violates 
his  trust,  and  another  person  takes  advantage  of  the  devastavit, 
knowing  that  the  personal  representative  is  not  proceeding  ac- 
cording to  the  requirements  of  the  law,  or  the  terms  of  the  will 


'Baker     v.     Fuller,     69    Me.     152;  right  to  9€e  the  representative  for  (/^z/^j- 

Rownen,  Re,  29  Ch.  D.  358  (the  repre-  tavit.     Birch,  Re,  27  Ch.  D.  622. 
-sentative's  own  claim).  Where  heirs  or  distributees  co-operate 

^  Burrows  7'.  Walls,  5  De  G.  M.  &  G.  with  the  administrator  in  resisting  ille- 

233;  Wms.   Exrs.    1836;  25  Beav.  177,  gal  claims  against  the  estate,  they  are 

236.     Mere  laches  in   abstaining  from  entitled  to  all  the  benefits;  and  if  the 

calling  upon  the  representative  to  real-  administrator  wastes  the  assets  thus  re- 

ize  for  the  purpose  of  paying  his  debt,  tained   by   him   pending   the   litigation, 

whereby  the  representative  has  not  been  they  may  sue  his  bond  for  his  miscon- 

misled,  will  not  deprive  a  creditor  of  his  duct.     McMahon  v.  Paris,  87  (Ja.  660. 

489 


§    395  EXECUTORS    AND    A  OMIMSTKATORS.  [PART   IV. 

under  which  he  was  appointed,   such  complicity  will  authorize 
those  interested  in  the  estate  to  hold  such  third  party  liable.' 

§  395.  Liability  of  Executor  or  Administrator  on  his  ovrn  Con- 
tracts. —  The  liability  of  an  executor  or  administrator,  in  respect 
of  his  own  contracts  touching  the  estate,  may  be  gathered  in  a 
measure  from  our  previous  discussion  of  his  rights.^  The  for- 
mer inclination  appears  to  have  been  to  charge  the  executor  or 
administrator  strictly  as  an  individual,  and  not  in  his  represen- 
tative capacity,  where  the  promise  was  alleged  to  have  been 
made  by  him  after  the  death  of  the  person  whose  estate  he  rep- 
resented. In  general,  where  the  claim  or  demand  wholly  ac- 
crued in  his  own  time,  the  representative  was  to  be  held  personally 
liable  alone. ^  And  some  decisions  still  countenance  the  doc- 
trine that  no  action  at  law  will  lie  against  an  executor  or  admin- 
istrator, as  such,  except  upon  some  claim  which  originated  against 
the  testator  or  intestate  during  his  lifetime,  notwithstanding  the 
contract  sued  upon  was  made  by  him  for  the  benefit  of  the  es- 
tate." 

But,  according  to  the  weight  of  modern  authorities,  the  exec- 
utor or  administrator  is  liable  upon  such  promise,  in  his  repre- 
sentative, as  well  as  his  personal  capacity,  where  the  claim  or 
demand  accrues  in  his  own  time,'  provided  that  which  consti- 
tuted the  consideration  of  the  promise,  or  the  cause  of  action, 
arose  in  the  lifetime  of  the  decedent.''  Where  assets  are  defi- 
cient, a  reliance  upon  the  individual  liability  of  a  wealthy  repre- 
sentative may  be  advantageous  for  the  creditor  ;  but  the  reverse 
is  sometimes  the  actual  situation,  and  hence  the  advantage  of 
giving  the  plaintiff  an  option. ^  In  modern  practice,  however, 
the  sufficiency  of  a  probate  bond,  with  principal  and  sureties, 
may  be  of  great  consequence. 

'  Rogers  z/.  Fort,  19  Ga.  94.  And  see  Adams,  16  Vt.  228;  Beaty  v.  Gingles,  8 
supra  as  to  sales,  §  359.  Jones  L.  302. 

^  Supra,  §§256,  29c,  292.  '•See  Valengin  v.  Uuffy,  14  Pet.  282, 

'Wms.    Exrs.    1771  ;  Cro.  Eliz.  91;    per  Taney,  C.  J. 
Hawkes  v.  Saunders,  Cowp.  289 ;  Jen-         Mb. 

nings  z/.  Newman,  4  T.  R.  348;  Cocke         ''Thomas,  J.,  in  Luscomb  ?'.  Ballard, 
V.  Trotter,   10   V'erg.    213;    Adams    <'.     5  Gray,  403. 

^Ashby  V.  Ashby,  7  B.  &  C.  449. 
490 


CHAP,   v.]    LIABILITY  OF  EXECUTOR  OK   ADMINISTKATOK.         §    396 

English  precedents  establish  that,  in  various  instances,  the 
representative  may  be  sued  as  such,  on  a  promise  made  by  him 
in  the  representative  character,  so  that  a  declaration  founded  on 
such  a  promise  will  charge  him  no  further  than  though  the 
promise  had  been  made  to  the  decedent  himself.  As,  perhaps, 
upon  the  executor's  promise  to  pay  an  award  made  after  his 
testator's  death  upon  an  arbitration  previously  entered  into  by 
the  testator  himself.'  Or  in  instances  where  the  plaintiff  avers 
simply  a  liability  of  the  defendant  as  executor,  or  as  administra- 
tor;- though  exceptions  Hke  these  raise  nice  distinctions  in 
pleading  not  always  clear  to  the  logical  mind,  nor  wholly  satis- 
factory to  the  common-law  judges  who  feel  compelled  to  recog- 
nize them.-'  These  distinctions  appear  to  have  originated  in  a 
judicial  effort  to  shield  the  personal  representative  from  individ- 
ual loss,  where  the  plaintiff's  cause  of  action  originated,  essen- 
tially during  the  decedent's  life,  and  upon  the  decedent's  own 
promise,  not  that  of  the  representative  ;  the  latter  having  done 
scarcely  more  on  his  part  than  to  recognize  the  claim  as  still 
binding.  And,  consequently  the  plaintiff  was  remitted  to  the 
assets,  the  court  treating  the  representative's  own  engagement 
as  presupposing  an  adjustment  on  such  a  basis. '♦ 

§  39^-  Representative  how  sued  upon  his  Express  Promise,  Col- 
lateral Undertaking,  etc. —  If  an  executor  or  administrator  prom- 
ises in  writing,  that,  in  consideration  of  having  assets,  he  will 
pay  a  particular  debt  of  his  decedent,  or  otherwise  brings  him- 
self within  the  rule  of  a  personal  collateral   undertaking  for  his 

'  Dowse  z/.  Coxe,  3  Bing.  20 ;  reversed,  subject  matter  of  the  contract  was  in 

however,  on  appeal,  though  on  a  differ-  fact  a  contract  Hability  of  the  testator 

ent  ground.     6  B.  &  C.  255.  incurred  during  his  Ufe.     And  see  Pugs- 

^  Secar  v.   Atkinson,    i    H.   Bl.    102;  ley  i'.  Aiken,  i  Kern.  494. 

Ashby  V.  Ashby,  7  B.  &  C.  444  ;  Wms.  "  So  is  it  held  in  this  country  that  for 

Exrs.  1773.  property  lawfully  received  by  the  exec- 

'See  Rose  v.  Bowler,  i    H.  Bl.  108;  utor  and  administrator,  and  held  as  as- 

7  Taunt.  586  ;  also  Lord  Tenterden  and  sets,  he  is  hable  to  any  party  having  a 

Littledale,  J.,  in  Ashby  v.  Ashby,  7  B.  good  title,  either  in  his  representative 

&  C.  449,  452  ;  Wms.  Exrs.  1 771-1776,  character,  or  personally  (/f /w/zw/zy'/^vVj, 

where  these  cases  are  collated.     And  at  such  party's  election.     De  Valengin 

see  Scott  r'.  Key,  9  La.  .A.nn.  213.     In  v.  Duffy,  14  Pet.  282.     The  remarks  of 

Chouteau  v.  Suydam,  21  N.  \'.  179,  the  Taney,  C.  J.,  in  this  case,  seem  to  favor 

491 


§   397  EXECUTORS    AND    ADMINISTRATORS.  [fART  IV. 

decedent's  obligation,"  he  may  be  sued  on  this  promise  in  his  in- 
dividual capacity,  and  the  judgment  against  him  will  be  dc  bonis 
propriis.-  The  plaintiff  should  in  such  case  aver  assets,  or  a  for- 
bearance to  sue,  or  some  other  consideration.  And,  in  general, 
where  the  nature  of  the  debt  is  such  as  renders  it  binding  upon 
the  representative  as  an  individual,  whether  because  he  con- 
tracted it  or  because  he  has  assumed  the  liability  which  origi- 
nated against  the  decedent,  the  judgment  will  be  against  him 
de  bonis  propriis,  although  he  promised  nominally  in  the  official 
capacity.^ 

§  397-  Representative  liable  as  an  Individual,  where  Cause  of 
Action  wholly  accrued  after  his  Decedent's  Death,  on  Transactions 
with  Him,  etc.  —  In  causes  of  action  wholly  accruing  after  his 
decedent's  death,  the  personal  representative  is  in  general  liable 
individually."*  And  wherever  an  action  is  brought  against  an 
executor  or  administrator,  on  promises  said  to  have  been  made 
by  him  after  his  decedent's  death,  he  is  chargeable  in  his  own 
right  and  not  as  representative.^  In  general,  an  action  for  goods 
sold  and  delivered  to  one  as  representative,  or  for  work  done,  or 
services  rendered,  at  his  request,  in  the  settlement  of  the  estate, 
should  be  brought  against  the  defendant  personally,  and  not  in 
his  representative  character.''     Wherever,  in  fact,  the  action  is 


considerable    latitude  as  to  allov\ing  a  the  decedent  might  not  have  been  sua- 

plaintiff  to    sue  the   representative,   at  ble  on  his  promise,  the  representatives 

election,  either  in  his  individual  or  rep-  may  be  suable  on  theirs.      Rusling  v. 

resentative capacity,  though  the  demand  Rusling,  47  N.  J.  L.  1. 

should   wholly  accnie  after   the  dece-  "  De  Valengin  7-.  Duffy,  14  I'et.  282; 

dent's  death.     And  sfta  siipm,  §  382.  Kerchner  v.  McRae,  80  N.  C.  219.  And 

'  Supra,  §  255.  see  §  382. 

^Ib. ;  Wms.  Exrs.    1783;  Cro.   Eliz.  MVms.   Exrs.    1771  ;    Cro.   Eliz.   91; 

91;    Taliaferro  v.   Robb,   2   Call.    258.  Cowp.  289;  Jennings  z/.  Newman,  4  T. 

But  as  to  the  necessity  of  averring  as-  R.   348;  Clarke  v.   Alexander,   71  Ga. 

sets,  of.   Wms.   Exrs.    1776;   7  Taunt.  500. 

580;  3  Bing.   20.     If  there  were  no  as-  *  Corner  v.  Shew,   3   M.  &   W.  350; 

sets,  the  promise  of  the  representative  Austin  r.  Munro,  47  N.  V.  360 ;  Davis 

is  nudinn  pactum.     Supra,  §  255.  v.  French,  20  Me.  21  ;  Myer  v.  Cole,  12 

^  Wms.  Exrs.  1783;  Corner  i/.  Shew,  Johns.  349;  Matthews  v.  Matthews,  56 

3  M.  &   W.  350;  supra,  §  256;  Johns-  Ala.  292;  supra,  §  256;   Lovell  f.  Field, 

ton  w.  Union  Bank,  37  Miss.  526  ;  Wood  5  Vt.   218;  Harding  v.   Evans,  3  Port, 

z/.  Tunnicliff,  74  N.  Y.  38.    Even  though  221  ;  Baker  v.  Moor,  63  Me.  443. 

492 


CHAP,   v.]    LIABILITY  OF  EXECUTOR  OR  ADxMIXISTRATOR.        §    398 

brought  against  the  executor  or  administrator  on  his  own  con- 
tracts and  engagements,  though  made  for  the  benefit  of  the  es- 
tate, this  rule  holds  true  ;  and  his  promise  "  as  executor,"  or  "  as 
administrator,"  will  not  alter  its  application.'  For,  having  no 
power  to  bind  the  estate  specifically  by  his  engagements,  the  rep- 
resentative binds  himself  ;  there  can,  therefore,  be  no  judgment 
out  of  the  decedent's  goods,  and  the  action  must  be  brought 
declaring  against  him  in  his  right. ^  The  judgment  is  rendered 
dc  bonis  propriis,  and  he  must  respond  accordingly.^ 

But  for  one  to  maintain  such  suit  against  the  representative 
individually,  the  latter  should  have  been  an  actual  party  to  the 
contract  or  transaction.  For,  it  is  said,  an  executor  or  adminis- 
trator is  not  liable,  either  personally  or  in  his  representative 
character,  for  services  beneficial  to  the  estate  performed  without 
his  assent,  after  the  decedent's  death  and  before  his  own  appoint- 
ment, under  contract  with  the  special  administrator  or  with  one 
who  declined  the  trust  of  executor.''  Even  where  real  estate  is 
rightfully  managed  by  the  executor,  under  exception  to  the  gen- 
eral rule,5  such  person  has  been  held  personally  answerable  to 
third  persons  for  injuries  sustained.^ 

§  398.  Exceptional  Instance  of  suing  for  Funeral  Expenses,  etc. — 
An  action,  however,  may  be  maintained  in  various  States  against 
an  executor  or  administrator,  as  such,  for  the  funeral  expenses 
of  the  deceased  ;  charging  him  thus  in  his  representative  char- 
acter as  that  judgment   may  be  rendered  de  bonis  dcccdcntisj 

'  Beaty  v.   Gingles,  8  Jones   L.  302;  Super.  26  ;  Tucker  7/.  Whaley,  11   R.  I. 

Hopkins  v.  Morgan,  7  T.  B.  Mon.  i.  543. 

^  Barry  v.  Rush,  i    T.  R.  691  ;  Sum-  As  to  suing  an  executor  who  is  also 

ner  t'.  WilUams,  8  Mass.    199;  Davis?',  residuary  legatee,   and  who  has  given 

French,   20   Me.    21,  per    Shepley,  J.;  bond  to  pay  debts  and  legacies,  see  140 

supra,  §  256.  Mass.  66;   144  Mass.  238. 

^  Seip  V.   Drach,    14  Penn.  St.  352;  '  See  §  213. 

Powells'.  Graham,  7  Taunt.  585  ;  Corner  ^  Bel  via  v.  French,  84  Va.  81. 

7'.  Shew,  3  M.  &  W.  350;  Wms.  Exrs.  ^Hapgoodz'.  Houghton,  10  Pick.  154  ; 

1783.  Seip  V.  Drach,  14  Penn.  St.  352  ;  Rap- 

*  Luscomb  V.  Ballard,  5  Gray,    403.  pelyea  v.   Russell,  i  Daly,   214;  Camp- 

And   see    Matthews    v.    Matthews,    56  field  v.  Ely,  13  N.  J.  L.  150;  Samuel  v. 

Ala.    292;  Ross  z/.  Harden,   44    N.    Y.  Thomas,  51  Wis.  549- 

493 


§  398^ 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 


But  the  case  stands  on  its  peculiar  ground  of  exception  ; '  claims 
of  this  character  taking  the  priority  of  most  general  debts  orig- 
inating with  the  decedent  himself,  and  being  siii  generis,  nor  de- 
pending wholly  upon  strict  contracts  with  a  representative.  The 
modern  English  doctrine  on  this  point  is,  that  if  the  executor  or 
administrator  gives  orders  for  the  funeral,  or  ratifies  or  adopts 
the  acts  of  another  party  who  has  given  orders,  he  makes  him- 
self liable  personally  and  not  in  his  representative  capacity  ;  and 
such,  too,  is  the  rule  of  various  States.^ 


§  398^.  Liability  of  Executor  or  Administrator  on  Negotiable 
Instruments.  —  An  executor  or  administrator  who  makes,  in- 
dorses, or  accepts  negotiable  paper,  is  personally  liable  thereon, 


'  Thomas,  J.,  in  Luscomb  v.  Ballard, 
5  Gray,  405;  Studley  v.  Willis,  134 
Mass.  435. 

^  Corner  v.  Shew,  3  M.  &  W.  350 ; 
8  Ad.  &  El.  349  n.;  Wms.  Exrs.  1788, 
1791  ;  Ferrin  v.  Myrick,  41  N.  Y.  3 15. 
As  to  supplying  a  tombstone,  see  25 
Hun,  4.  As  to  necessaries  for  the  fu- 
neral which  some  one  else  ordered,  see 
13  Daly,  347.  And  see  §  421,  post,  as 
to  funeral  expenses. 

Qu.  whether  valuable  services  ren- 
dered in  taking  care  of  the  effects,  etc., 
after  the  decedent's  death,  and  before 
any  representative  was  appointed,  might 
not  be  brought  within  the  reason  of  this 
same  exception  in  meritorious  instances. 
This  service,  like  that  of  burial,  may  be 
performed  out  of  kindness  or  necessity, 
as  it  were,  and  without  a  previous  con- 
tract, as  by  a  custodian  who  must  search 
out  the  kindred.  See  supra,  §  193 ; 
Luscomb  V.  Ballard,  5  Gray,  403. 

When  the  law  as  to  remedies  proves 
so  uncertain  as  to  leave  one  in  funda- 
mental doubt  as  to  whether  one  shall 
sue  or  be  sued  in  the  individual  or  rep- 
resentative capacity,  in  a  particular  in- 
stance, the  legislature  .should  intervene 
and  make  a  more  flexible  rule.  Among 
numerous  cases    which    might    be    ad- 


duced in  proof  of  the  genuine  uncer- 
tainty which  has  prevailed  in  the  law, 
because  one  must  distingtiish  clearly  be- 
tween contracts  of  the  decedent  and  con- 
tracts of  the  decedent's  representative, 
Austin  V.  Miinro,  47  N.  Y.  360,  is  worthy 
of  study,  with  the  distinctions  announced 
in  the  opinion  of  the  court.  In  Snead 
V.  Coleman,  7  Gratt.  300,  a  State  court 
appears  to  have  continued  in  a  quandary 
as  to  whether  the  suit  should  have  been 
brought  against  representatives  officially 
or  as  individuals.  It  seems  highly  de- 
sirable that  such  litigation  should  be 
allowed  to  go  at  option  or  in  the  alter- 
native; that  a  joinder  of  a  cause  found- 
ed upon  the  contract  of  an  intestate  with 
one  founded  upon  the  contract  of  the 
representative  should  be  allowed,  or 
that  the  action  itself  should  be  capable 
of  conversion  from  one  fomi  to  another, 
final  judgment  being  rendered  according 
to  the  facts  and  as  justice  might  require. 
At  present,  there  is  always  great  danger 
that  a  suit  founded  on  a  just  cause  of 
action  may  fall  to  the  ground  because 
of  some  misconception  at  the  outset  as 
to  whether  the  contract  originated  with 
the  decedent  or  the  decedent's  repre- 
sentative.    See  appendix,  post. 


494 


CHAP,  v.]    LIABILITY  OF  EXECUTOR  OR  ADMINISTRATOR.      §    398/* 

although  he  adds  to  his  signature  the  name  of  his  office.  Nor 
does  the  mere  mention  of  his  decedent's  estate  in  the  instru- 
ment, deprive  it  necessarily  of  its  negotiable  character ;  but  to 
have  that  effect  there  must  be  a  direction,  express  or  implied, 
to  pay  from  that  fund,  and  not  otherwise." 

In  undertaking  to  bind  the  estate  by  a  note,  and  failing  for 
want  of  authority,  the  representative  binds  himself  personally.-' 

§  398^^-  Action  against  Executor  or  Administrator  for  Waste. 
—  Inasmuch  as  the  probate  court  has  now  exclusive  jurisdiction, 
subject  to  appeal,  of  the  estates  of  decedents,  and  their  final 
settlement  and  distribution,  including  the  adjustment  of  the  ac- 
counts of  the  personal  representative,  the  old  common-law  ac- 
tion of  negligence,  as  brought  by  residuary  legatees  or  distribu- 
tees against  the  former  representative  for  wasting  assets  is  not 
to  be  favored. 3  Notwithstanding  such  representative  has  ren- 
dered his  final  account  and  resigned,  he  may  still  be  cited  into 
the  probate  court,  as  various  codes  provide.'* 

'  Schmittler  v.  .Simon,  loi  N.  Y.  737,  ^  McCalley  ?'.  Wilburn,  77  Ala.  549. 
and  cases  cited;  Higgins  v.  Driggs,  21      Aud  see  §  258. 

Fla.  103;  Perry  v.  Cunningham,  40  Ark.  ^  Appendix  post\  §§  189,  520;  Graf- 
185.  fam  V.  Ray,  91  Me.  235. 

"  lb. 

495 


§  400  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV, 


CHAPTER  VI. 

CO-ADMINISTRATION  AND  QUALIFIED  ADMINISTRATION. 

§  399-    Doctrines  of  foregoing  Chapters  apply  to  Qualified  Trusts. 

—  The  doctrines  discussed  in  our  previous  chapters,  concerning 
the  powers,  duties,  and  habilities  of  the  personal  representative, 
apply,  mutatis  mutandis,  to  all  executors  and  administrators, 
l^ut,  as  we  have  already  observed  in  an  earlier  part  of  this  trea- 
tise,' administration  is  not  always  original  and  general,  but  qual- 
ified in  various  instances,  as  the  circumstances  of  appointment 
may  require.  General  doctrines  require,  moreover,  a  special 
adaptation  to  suit  the  case,  where  two  or  more  are  appointed  to 
the  same  trust.  Co-administration  and  qualified  administration, 
therefore,  considered  with  reference  to  the  peculiar  powers  and 
responsibilities  which  attach  to  such  appointees,  will  claim  our 
attention  for  the  present  chapter. 

v^  400.  Rights,  Duties,  and  Liabilities  of  Co-Executors ;  their 
Title  and  Authority.  —  And,  first,  as  to  the  rights,  duties,  and 
liabilities  of  co-executors  and  co-administrators.  Co-executors, 
unless  the  will  under  which  they  act  directs  otherwise,  are  to  be 
treated  in  law  as  one  and  the  same  individual ;  and  consequently 
whatever  each  one  does  is  taken  to  be  the  act  of  both  or  all, 
their  authority  being  joint  and  entire.^  Hence,  too,  if  one  of 
them  dies,  the  fiduciary  interest,  being  joint  and  entire,  will  vest 
in  the  survivor ;  this  even,  to  cite  the  earlier  writers,  without 
any  new  grant  of  letters.^     And  this  survivorship  carries  such 

'  Hee  stipra.  Part  II.,  c.  4.  Healy,  55   Me.   120.     As  to  the  limita- 

^  Wms.  Exr.s.  91 1,  946  ;  3  Bac.  Abr.  tions  which  a  will  may  have  imposed  in 

tit.  Executors,  D  ;  Wentw.  Off.  Ex.  206,  this  respect,  see  supra,  §  51. 

14th  ed. ;  Rigby,  Ex  parte,  19  Ves.  462  ;  ^  Cas.  temp.  Talb.  127  ;  Wms.  Exrs. 

F2dmonds  v.   Crenshaw,    14    Pet.    166;  911.     But   upon  this  point   see  supra, 

Stewart  v.  Conner,  9  Ala.  803;   Wilker-  §  40.     Where  a  co-executor  named  in 

son  z'.  Wootten,  28  Ga.  568;  Oilman  7\  the  will  renounces  probate,  the  others 

496 


CHAP.   VI.]  CO-ADMIN  ISTKATION,    ETC,  §  4OO 

sweeping  consequences  that,  as  equity  precedents  establish,  if 
all  the  residue  of  the  testator's  effects,  after  the  payment  of 
debts  and  legacies,  were  left  to  his  co-executors,  and  one  of  them 
should  happen  to  die  before  the  joint  interest  in  the  residue  was 
severed,  his  share  would  survive  to  the  decedent's  co-executor 
to  the  exclusion  of  his  own  personal  representative ; '  a  result 
most  inequitable,  and  not  to  be  admitted  if,  by  statute  provision 
or  a  fair  construction  of  the  particular  will,  so  absolute  a  surviv- 
orship may  be  ruled  out.' 

As  incidental  to  their  joint  and  entire  title,  it  is  held  at  com- 
mon law  that  if  one  Of  two  executors  grants  or  releases  his  in- 
terest in  the  estate  to  the  other,  nothing  shall  pass,  because  each 
was  possessed  of  the  whole  before ;  ^  and,  furthermore,  that  they 
cannot  sue  in  right  of  the  deceased  upon  a  contract  made  by  a 
defendant  jointly  with  one  of  the  co-executors,  since  this  would 
be  like  permitting  a  man  to  sue  himself.''  But,  while  a  party 
bound  in  a  contract  with  others,  whereby  he  becomes  both  ob- 
ligor or  obligee,  cannot  maintain  on  'such  contract  an  action  at 
law ;  or,  in  other  words,  cannot  sue  himself  at  law,  if  the  con- 
tract be  joint  ;5  he  may  if  it  be  joint  and  several.  On  this  dis- 
tinction it  is  held,  recently,  that  a  note  executed  by  one  of  two 
executors,  in  favor  of  himself  and  his  co-executors,  may  be  en- 
forced by  the  two  in  an  action  against  the  indorsers.*^ 

Of  two  or  more  executors  under  a  will,  moreover,  each  is 
entitled  to  receive  any  part  of  the  assets,  and  to  collect  any 

who  qualify  exercise  all  the  authority  waive   compensation   cannot    prejudice 

and  incur  all  the  responsibilities  inci-  therightsof  his  co-executors.     i4Phila. 

dental  to  the  office.     Supra,  §  51.  290. 

'  Wms.  Exrs.  913;   2  Bro.  C.  C.  220;  ^  Godolph.   pt.   2,  c.    16,  §  i  ;    Wms. 

3  Bro.  C.  C.  455;  Knight  v.   Gould,  2  Exrs.  911. 

My.  &  K.  295.  "I  Godolph.   pt.  12,  $  2;    Wms.   Exrs. 

-  If  one  of  several  legatees  be  an  e.x-  913  ;  2  Chitt.  339. 

ecutor,  his  single  assent  to  his  own  leg-  '  Moffat  v.  Van  Millingen,  2  B.  &  P. 

acy  will  vest  the  title  in  him  ;  or,  if  the  124. 

subject  be  entire,  and  be  given  to  all  the  ''  Faulkner  v.  Faulkner,  73  Mo.  327. 

executors,  one  may  assent  sufficiently  to  A  note  given  by  an  executor  in  favor  of 

his  own  proportion,     i  Roll.  Abr.  618;  himself  and  his  co-executor,  for  money 

Wms.    Exrs.    948;    Cole   v.    Miles,    10  of  the  estate  used  by  himself,  is  not  void 

Hare,  179.  for  want  of  consideration.     lb. 

The  agreement  of  one  executor  to 

32  497 


§  400  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

debts.'  An  assignment  or  release,  valid  under  the  general  rules 
of  administration,  is  valid  when  given  by  any  one  of  them.^  It 
is  held  that  one  executor  may  release  or  assign  a  mortgage  of 
real  -or  personal  property  belonging  to  the  estate  without  the 
signature  or  assent  of  his  co-executors.^  Or  enter  into  an  ami- 
cable action,  and  submit  to  an  arbitration.^  Or  compromise  as 
any  other  executor  or  administrator  may  do.5  Or  assign  or  in- 
dorse over  a  promissory  note  made  payable  to  the  testator.^ 
Or  settle  an  account  with  a  debtor,  provided  he  does  so  honestly 
and  with  the  usual  measure  of  prudence. ^  Or  grant  or  surren- 
der a  lease  or  term.**  Or  sell  and  dispose  of  assets  on  behalf  of 
all.9  Or  assent  sufficiently  to  a  legacy.'"  Or  make  due  ac- 
knowledgment that  a  debt  is  due."  Or  discharge  a  security 
taken  for  the  payment  of  a  debt  due  the  estate,  on  a  satisfaction 
made  to  him.'^  In  short,  as  regards  personal  assets,  any  one  of 
two  or  more  co-executors  may  do  whatever  both  or  all  could 
have  done,  and  under  like  qualifications,'^  and  the  act  of  one 
within  the  scope  of  his  duties  binds  the  others. 

While,  however,  one  executor  may  thus  transfer  the  legal 
title  to  property,  and  even  make  a  delivery  not  in  all  respects 
effectual  as  to  title,  which  shall,  nevertheless,  give  the  trans- 
feree every  legal  advantage,  a  court  of  equity  declines,  wherever 
its  assistance  is  invoked,  to  enforce  or  confirm  an  unjust  trans- 

'  Edmonds  z/.  Crenshaw,  14  Pet.  1 66;         *  Dwight    v.     Newell,     15    111.    t^h; 

Stewart  v.  Conner,  9  Ala.  803.  Bogert  v.  Hertell,  4  Hill,  492  ;  Wheeler 

^  As  to  release,  see  Wms.  Exrs.  946 ;  v.  Wheeler,  9  Cow.  34. 
2   Ves.   Sen.    267  ;    Shaw  v.  Berry,   35         ''  Smith  v.  Everett,  27  Beav.  446. 
Me.  279;  Stuyvesant   v.   Hall,  2  Barb.         *  Simpson    v.    Gutteridge,    i    Madd. 

151;    Devling   v.    Little,    26  Penn.   St.  616.     And  see   11    M.  &  W.  773,  com- 

502  ;  Hoke  v.  Fleming,  10  Ired.  L.  263.  menting  upon  Turner  v.  Hardey,  9  M. 

But  several  releases  by  joint  executors  &  W.  770. 

do  not  bar  their  legal  joint  claim  against         '  Cro.  Eliz.  478;    Murrell  7.'.  Cox,  2 

the  debtor.     Pearce  z/.  Savage,   51  Me.  Vern.  570.     But  cf.  Sneesby  z'.  Thorne, 

410.  7  De  G.  M.  &  G.  399. 

3  Weir  V.  Mosher,  19  Wis.  311  ;  Son         '°  Wentw.  Off.  Ex.  413;   Wms.  Exrs. 

V.    Miner,    37    Barb.    466 ;    George   v.  948. 
Baker,  3  Allen,  326.      And  see  Bogert         "  (1897)  2  Ch.  181. 
V.  Hertell,  4  Hill,  492.  "  People  v.  Keyser,  28  N.  Y.  226. 

<  Lank  v.  Kinder,  4  Haning.  457.  ''  Bodley  v.   McKinney,  9  Sm.  &  M. 

5  Weirt'.  Mosher,  19  Wis.  311  ;  Wms.  339;  Barry  v.  Lambert,  98  N.  V.  300. 
Exrs.  946  and  Perkins's  note. 

498 


CHAl'.    VI.]  CO-ADMINISTRATION,    ETC.  §   40 1 

action  of  this  character;'  and,  perhaps,  on  the  suggestion  of 
fraud,  collusion,  and  unfair  dealing,  will  set  aside  or  disallow  the 
transaction,  at  the  instance  of  the  co-executor.-  For  the  acts 
of  any  co-executor,  committed  outside  the  scope  of  an  honest 
and  sufficiently  prudent  administration,  are  not  to  be  sustained 
in  courts  of  equity  or  probate. 

§  401.  The  same  Subject.  —  In  the  settlement  of  an  estate  by 
co-executors,  the  exclusive  custody  and  control  of  the  assets 
vests  in  no  one  of  their  number.  Each  executor  has  a  right  of 
possession  to  the  personal  property,  and  a  right  of  access  to  the 
papers.''  The  act  of  one,  in  possessing  himself  of  assets,  is  the 
act  of  all,  so  as  to  entitle  them  to  a  joint  interest  in  possession, 
and  a  joint  right  of  action  if  they  are  afterwards  taken  away.' 
But  there  may  be  a  contract  between  joint  executors  concern- 
ing the  funds  of  the  estate  and  management,  and  this  upon  per- 
fectly valid  consideration  as  between  themselves.'  And,  in 
order  to  act  with  becoming  prudence,  it  is  well  that  the  funds 
should  be  kept  so  that  both  or  all  the  executors  shall  exercise 
control  or  supervision  thereof  together.  Where  such  is  the  case, 
any  person  dealing  with  them  is  bound  upon  notice  to  recognize 
their  joint  title.-' 

It  is  held,  moreover,  that  one  of  two  executors  cannot  assign 
or  indorse  over  a  negotiable  note  made  to  them  both,  as  execu- 
tors, for  a  debt  due  to  their  testator.^  And  the  modern  course 
of  authority  does  not  permit  a  co-executor  to  bind  the  others 
l^ersonally  by  his  new  promise  to  pay  in  future  even  a  debt  of 
the  estate  ;  and  such  a  promise,  or  an  admission  of  indebtedness, 

'  Lepard  -,•.  Vernon,  2  Ves.  &  B.  51  ;  153;  Wood  v.   Brown,  34    N.    V.   337; 

Sneesby  v.  Thorne,  7   De  G.   M.  &  G.  Hall  v.  Carter,  8  Ga.  388. 

399.  '•Nation  v.  Tozer,  i  Cr.  M.  &  K.  174, 

^  Wms.     Exrs.    948,   note ;    Touchst.  per  Parke,  B. 

484;  Le  Baron?'.   Long  Island   Bank,  =  Berry   v.   Tait,    1    Hill    (S.    C.)    4; 

53  How.   (N.  Y.)   Pr.  286.     As  to  aid-  Faulkner  v.  Faulkner,  73  Mo.  327. 

ing  in  equity  a  deed  made  by  one  co-  ^Thus,  if  they  open  a  joint   account 

e.xecutor,  but  authorized  and  approved  with  a  banker,  both  must  unite  in  a  re- 

by  the  others  as  merely  an  imperfect  ceipt  or   check  in    order  to  discharge 

execution  of  the  power  given  by  the  will,  him.     De  Haven  v.  Williams,  80  Penn. 

see  Giddings  v.  Butler,  47  Tex.  535.  St.  480.     And  see  50  La.  Ann.  382. 

^Chew's    Estate,   2    Pars.    Sel.    (Pa.)  ^  Smith  ?'.  Whiting,  9  Mass.  334. 

499 


§  402  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

cannot  be  received  in  evidence  against  his  co-executors  ;  and  the 
same  holds  true  where  the  promise  is  expressed  by  an  instru- 
ment signed  by  one  of  the  executors  alone.'  As  to  whether  the 
new  promise  of  one  executor  can  bind  the  estate,  however,  the 
decisions  are  found  discordant  in  jurisdictions  where  a  positive 
rule  fixed  by  the  legislature  is  wanting.-' 

All  the  executors  who  have  qualified  ought  to  join  in  execut- 
ing a  testamentary  power  of  sale  or  purchase.' 

§  402.  Co-Executors  ;  their  Liability,  etc.  —  Good  faith  and  the 
usual  measure  of  prudence  applicable  to  fiduciaries  should  char- 
acterize the  conduct  and  dealings  of  co-executors.  In  admin- 
istering the  assets,  each  co-executor  is  at  this  day  often  held 
responsible  for  the  safety  of  the  fund,  so  as  not  to  be  utterly 
excused  from  losses  incurred  by  the  carelessness  or  misconduct 
of  his  fellow.^  A  dishonest,  unauthorized,  or  imprudent  sale, 
transfer,  or  investment  is  no  more  to  be  sanctioned  where  the 
executorship  is  joint  than  where  it  is  sole.5  And,  inasmuch  as 
each  executor  has  an  independent  right  to  control  and  transfer 
the  assets,  one  is  bound  not  to  be  heedless  as  to  his  co-executor's 
conduct,  but   rather,  as  in  requiring  a  joint  deposit  or  transfer, 

'  TuUock  t'.   Dunn,  Ry.  &  Moo.  416;  promise  or    acknowledgment    growing 

Scholey  ■:■.   Walton,  12    M.  &  W.  509;  out  of  the  decedent's  original  contract, 

Forsyth  7'.   (lanson,   5  Wend.   558;  El-  the  difficulty  is  fundamental.    The  Eng- 

Avood  -'.  Diefendorf,  5  Harl).  398.     One  lish     view   is     not     clearly   expressed, 

of  several   executors  has  no    power  to  Scholey   r.   Walton,    supra.      But   the 

charge  the  estate  or  his  co-executor  by  subject  is  now  controlled  in  that  country 

indorsing  a  note  in  the  name  of  the  es-  by  stat.  9  Geo.   IV.  c.   14,  §  i,  which 

tate,  even  though  it  be  given  in  renewal  provides  that  the  promise  shall   be  in 

of  one  indorsed   by  the  testator  in  his  writing,  and  shall  only  affect  the  execu- 

lifetime.     Bailey  r/.  Spofford,  21    N.  V.  tor  making  it. 

Supr.  86.     See  supra,  §293,  as  to  the  As  to  co-executors  carrying  on  under 

effect  of  a  representative's  promissory  the  will  a  partnership  business,  see  54 

note.     Cf.  (1897)  2  Ch.  181.  N.  J.  Eq.  127. 

^See  Shreve  v.  Joyce,  36  N.  J.  L.  44,  ^Wilson  v.  Mason,  15S  111.  304. 

where  it  is   held  that   it  can.     And  see  ■•  De    Haven   z'.    Williams,  80   Penn. 

Emerson  7:.   Thompson,    16  Mass.  431  ;  St.  480. 

Cayuga  Co.   Hank  v.   Bennett,  5   Hill,  '  Le  Baron  -■.  Long  Island  Bank,  53 

236.     But   the  promise  of  one  will  not  How.  (N.  Y.)  Pr.  286 ;  Lacey  v.  Davis, 

avail  again.st  the  estate  in  some  States.  4  Redf.  (N.  Y.)  402 ;  Case  v.  Abell,  I 

Peck  V.   Bottsford,  7    Conn.   172  ;   Rey-  I'aige,  393. 
nolds  V.  Hamilton,  7  Watts,  420.     The 

500 


CHAP.  VI.]  CO-ADMINISTRATION,    ETC,  §  402 

or  joint  investment  of  funds,  to  impose  a  check  upon  the  other's 
authority.  For,  if  an  executor,  by  any  act  or  default  on  his 
part,  places  the  estate  and  its  management  in  the  exclusive 
power  of  his  co-executor,  he  takes  the  perils  of  the  latter's  mal- 
administration upon  himself,  unless  he  exercised  what  American 
courts  would  call  ordinary  prudence.' 

Thus,  if  an  executor  delivers  or  assigns  securities  to  his  co- 
executor  in  order  to  enable  the  latter  to  receive  the  money 
alone,^  or  draws  or  indorses  in  his  favor  a  bill  or  note  to  a  sim- 
ilar end,^  or  leaves  him  free  to  negotiate  a  transfer  or  make  a 
sale  at  his  sole  discretion,  or  gives  him  a  power  of  attorney  on 
his  own  behalf,  thereby  deputing  that  control  and  supervision 
which  the  office  made  it  incumbent  upon  a  co-executor  to  exer- 
cise, he  cannot  wholly  escape  legal  liability  for  the  ill  conse- 
quences.'* Nor  is  he  exempt  from  a  personal  liability,  if  he  neg- 
lect unreasonably  enforcing  the  payment  of  a  debt  which  his 
co-executor  owed  the  estate,  and  was  legally  bound  to  pay.' 
But,  if  he  can  show  that  his  own  conduct  was  within  the  usual 
rule  of  prudence  and  good  faith,  under  all  the  circumstances, 
and  that  he  did  not  contribute  to  the  loss,  upon  such  a  standard 
of  liability,  he  is  excused  ;  for  the  cardinal  doctrine  is  that  co- 
executors  are  liable  each  for  his  own  acts  and  conduct,  and  not 
for  the  acts  or  conduct  of  his  co-executors.*^ 


'See    supra,   §  315.      The    English  Marsh.  442 ;  Head  v.  Bridges,  67  Ga. 

cases   may   consistently   treat    the   co-  227. 

fiduciary  as  one  having  no  recompense,         '  Styles  v.   Guy,    i    Mac.   &   G.  422  ; 

and  hence,  as  required,  rather  to  exer-  Candler  v.  Tillett,  22  Beav.  257  ;  Carter 

cise  slight   prudence,  like  a  gratuitous  v.  Cutting,  5  Munf.  223.     An  executor 

bailee,   or  so   as   not  to  be  in  "  wilful  -who  allows  his  co-executor  to  gain  un- 

neglect  or  default."     lb.     It  does  not  due  advantage  over  other  creditors,  is 

appear  that  the  Enghsh  precedents  fur-  liable.     McCormick  v.  Wright,  79  Va. 

nish   the  true  standard   for  American  524.     So  is  one  who  collects  assets  suf- 

courts  in  this  respect.  ficient    to   pay  a  debt,   and  then  pays 

^Candler  v.  Tillett,  22  Beav.  236.  them  over  to  his  sick  and  insolvent  co- 

'2  Bro.   Ch.   114;    Hovey  v.   Blake-  e.xecutor.     Knight  v.   Haynie,  74  Ala. 

man,  4  Yes.  608.  542. 

■•Clough  V.  Di.xon,  3  M.  &  C.  497;         *Cro.    Ehz.    318;    Wentw.   Oft.    Kx. 

Dix^-.  Burford,  19  Beav.  412;  Edmonds  306;  Wms.    Exrs.    1820,  and  note  by 

T'.  Crenshaw,  14  Pet.  166;  Sparhawk -■.  Perkins;  Williams  v.   Nixon,    2   Beav. 

Buell,   9   Vt.  41;  Wood  v.  Brown,  34  472;   Peter  v.    Beverly,    10    Pet.    532; 

^-    ^-   337;  Heath   v.  Alhn,    i    A.   K.  Peny  Tnists,  §  421  ;  Douglas  r'.  Satter- 

501 


§  402 


EXECUTORS    AND    ADMINISTRATORS.  [PART  IV, 


The  rule  as  thus  announced  may  appear  somewhat  different 
from  that  applied  in  equity  to  co-trustees,  whose  functions,  for 
the  most  part,  as  depending  upon  the  express  terms  of  the  will 


lee,  II  John.  i6;  Fennimore  ?'.  Fenni- 
more,  2  Green  Ch.  292 ;  Ames  <■'.  Arm- 
strong, 106  Mass.  18  ;  Moore  v.  Tandy, 
3  Bibb,  97 ;  Williams  v.  Maitland,  i 
Ired.  Eq.  92;  Kerr  v.  Water,  19  Ga. 
136;  Call  V.  E^\-ing,  i  Blackf.  301. 
Putting  assets  into  sole  control  of  one 
executor  may  be  justified  in  course  of 
business.     (1894)  i  Ch.  470. 

At  common  law  the  acts  of  each  ex- 
ecutor wthin  the  scope  of  his  authority, 
are,  as  concerns  administration,  the  acts 
of  all,  with  this  qualification :  that  at 
common  law  each  was  responsible  only 
for  such  assets  as  came  to  his  own 
hands.  Under  ordinary  circumstances, 
one  of  two  or  more  executors  was  not 
to  be  held  accountable  for  waste  or 
other  misconduct  on  his  associate's 
part ;  and  his  misplaced  confidence  in 
the  latter's  integrity  and  capacity  was 
not  allowed  to  operate  to  his  own  prej- 
udice. Ames,  J.,  in  Ames  v.  Arm- 
strong, 106  Mass.  18.  But  the  develop- 
ment of  this  doctrine  in  courts  of  equity 
appears  to  have  established  the  rule  of 
the  present  day  upon  a  somewhat  dif- 
ferent footing,  as  the  text  indicates; 
the  question  coming  to  be  regarded,  in 
view  of  the  great  extent  to  which  any 
one  of  them  could  practically  control 
and  dispose  of  assets,  rather  a.s  involv- 
ing the  element  of  contrilnitory  negligence 
or  fraud,  on  the  part  of  the  executor 
who  claims  immunity.  And  the  view 
taken  by  courts  of  probate  and  equity, 
in  passing  upon  the  accounts  of  execu- 
torship, becomes  more  and  more  the 
material  one  in  such  cases.  Even  at 
common  law,  as  it  is  admitted,  when- 
ever any  part  of  the  estate,  by  any  act 
or  agreement  of  one  executor,  passes  or 
is  intrusted  to  the  custody  of  a  co- 
executor,  they  are  thereby  rendered 
jointly   responsible ;  for   the   inference 

5 


arises  that  one,  notwithstanding  his 
power  and  opportunity  to  make  the 
joint  possession  secure,  has  chosen  to 
yield  control  to  the  other.  Ames,  J., 
in  Ames  v.  Armstrong,  supra.  The 
whole  subject  seems  to  have  been  spun 
by  the  courts  into  a  very  fine  web,  reach- 
ing from  point  to  point,  but  coming 
round  again  to  the  starting-place. 

The  mere  circumstance  that  assets 
came  to  the  hands  of  one's  co-executor, 
does  not,  it  is  held,  render  him  also 
liable.  U.  S.  Dig.  ist  series,  Exrs.  & 
Admrs.  1711;  Wms.  Exrs.  1821.  But 
it  is  said  to  be  different  where  an  execu- 
tor hands  them  over  to  his  co-executor, 
and  the  latter  misappHes  them.  Dick. 
356;  Macpherson  t'.  Macpherson,  i 
Macq.  H.  of  L.  243  ;  Sparhawk  z\  Buell, 
9  Vt.  41  ;  Edmonds  v.  Crenshaw,  14 
Pet.  166.  Passiveness,  in  not  obstruct- 
ing the  co-executor  who  gets  control  of 
the  assets,  has  been  considered  as  in- 
volving no  liability.  11  Ves.  335; 
Candler  v.  Tillett,  22  Beav.  257.  But 
the  exceptions  engrafted  upon  this  state- 
ment have  much  impaired  its  efficacy. 
I  Mac.  &  G.  433  n. ;  Wms.  Exrs.  1822, 
1827.  To  stand  by  and  see  the  co-ex- 
ecutor commit  a  breach  of  duty  renders 
one  clearly  liable.  lb.  "The  rule," 
adds  Williams,  "  may,  perhaps,  be  stated 
to  be,  that  where,  by  any  act  done  by 
one  executor,  any  part  of  the  represen- 
tative estate  comes  to  the  hands  of  his 
co-executor,  the  former  will  be  answer- 
able for  the  latter,  in  the  same  manner 
as  he  would  have  been  for  a  stranger 
whom  he  had  intru.sted  to  receive  it." 
Wms.  Exrs.  1822,  referring  to  Cox's 
note  to  1  P.  Wms.  241  ;  also  2  Bro.  C. 
C.  117;  Booth  V.  Booth,  i  Beav.  125; 
Styles  V.  Guy,  i  Mac.  &  G.  422.  Fail- 
ing to  withdraw  money  from  a  banker, 
who  happens  to  turn  out  insolvent,  does 
02 


CHAP.   VI.] 


CO-ADMINISTRATION,    ETC. 


§  402 


or  deed  which  created  their  authority,  require  that  all  should  join 
in  a  particular  act.  Consequently,  while  co-trustees  may  not  be 
liable  for  money  which  they  did  not  receive,  although  they  all 
joined  in  the  receipt,  co-executors  have  usually  been  held  liable 
in  such  a  case  ;  for  the  act  is  an  unmeaning  one  and  unnecessary, 
unless  they  intend  thereby  to  render  themselves  jointly  answera- 
ble for  the  money."  Notwithstanding  the  numerous  refine- 
ments of  equity  courts  upon  this  rule  (which  Lord  Eldon  de- 
plored), the  only  substantial  exception  appears  to  be  that  the 
mere  joining  in  the  receipt  shall  not  have  the  conclusive  effect 
of  charging  both.^ 

The  reconciling  principle  appears  to  be  that  a  co-executor  who 
joins  in  a  receipt  is  bound  by  the  consequences,  to  the  usual  ex- 
tent of  requiring  prudence  and  good  faith  ;  but  that  the  act  of  so 

not  necessarily  charge  a  co-executor,  nor     who  received  all  the  assets,  managed  the 


indeed  a  sole  executor;  and  so  with 
changing  investments,  originally  justifi- 
able, but  which  eventually  prove  unfor- 
tunate; or  confiding  in  some  agent  or  a 
co-executor  who  abuses  the  confidence 
placed  in  him.  Wms.  Exrs.  1825,  1826  ; 
sit^ra,  ^^  321,323;  Chambers  z\  Min- 
chin,  7  Ves.  193;  Worth  v.  McAden,  i 
Dev.  &  Bat.  Eq.  199 ;  Adair  z'.  Brimmer, 
74  N.  Y.  539.  But  to  intrust  large  sums 
and  large  authority  to  one  notoriously 
insolvent  or  irresponsible  is  a  very  dif- 
ferent matter.  The  question  reverts,  in 
short,  to  the  customary  issue  of  good 
faith  and  prudence,  considering  all 
the  circumstances,  as  in  the  case  of  a 
sole  executor  or  administrator.  And 
this  issue  becomes  crucial,  in  a  case 
where  one  executor  actively  manages, 
while  the  other  is  passive,  as  the  law 
permits.  See  Cocks  v.  Haviland,  124 
N.  Y.  426. 

The  understanding  of  all  concerned 
may  have  something  to  do  with  reducing 
liability.  Where  one  who  qualified  as 
co-executor  gave  the  beneficiaries  dis- 
tinctly to  understand  that  he  should  not 
act,  and  all  parties  believed  in  the  sol- 
vency and  probity  of  the  other  executor 


estate  alone  and  prepared  the  accounts, 
he  was  held  not  personally  liable.  Eng- 
hsh  V.  Newell,  42  N.  J.  Eq.  76.  But 
where  a  co-executor  -with  the  testator's 
^^•idow  yielded  to  her  wish  to  permit  her 
son  to  manage  the  estate,  and  the  son 
managed  badly,  the  co-executor  was 
held  hable  as  such  to  other  parties  in 
interest ;  and  here  he  had  joined  in  exe- 
cuting papers  when  requested.  Earle 
V.  Earle,  93  N.  Y.  104.  Where  a  lawyer 
is  co-executor  with  an  unprofessional 
person,  the  peculiar  confidence  natu- 
rally reposed  in  one  by  reason  of  his 
superior  knowledge  is  a  shield  to  the 
other  party.     4  Dem.  528. 

'  Perry  Trusts,  §  421 ;  2  Eq.  Cas. 
Abr.  456 ;  Leigh  v.  Barry,  3  Atk.  584  ; 
Monell  V.  Monell,  5  John.  Ch.  283 ; 
Jones's  Appeal,  8  W.  &  S.  143;  Clarke 
V.  Jenkins,  3  Rich.  Eq.  318. 

^  Westley  v.  Clarke,  i  Eden,  357 ; 
Doyle  V.  Blake,  2  Sch.  &  Lef.  242 ; 
Chambers  v.  Minchin,  7  Ves.  198.  The 
course  of  the  English  precedents  on 
this  subject  is  traced  in  Wms.  Exrs. 
1834,  1835.  And  see  Monell  r/.  Monpll, 
5  John.  Ch.  283  ;  Lord  Eldon's  remarks 
in  Walker  v.  Symons,  3  Swanst.  64. 


503 


§  402  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

joining,  though /yn'?na  fade  importing  that  the  money  came  to 
the  hands  of  both,  is  not  conclusive  evidence,  but  may  be  ex- 
plained so  as  possibly  to  exonerate  him.  Where  the  act  itself  is 
such  that,  as  under  a  trust,  all  the  executors  must  join  in  it, 
the  liability  is  placed  rather  on  the  footing  of  co-trusteeship  ;  or, 
perhaps,  it  should  be  said  that  a  court  treats  it  as  not  imprudent 
for  one  to  rely  upon  the  assurance  that  no  transfer  or  misappro- 
priation can  be  made  without  his  concurrence  in  the  act.  Thus 
would  it  be,  for  instance,  where  a  power  was  vested  in  both  un- 
der the  will ; '  or  where  stock  cannot  be  transferred  except  by 
the  signatures  of  all ;  ^  or  where  both  must  join  in  a  petition  ;  ^ 
or  where  the  indorsement  or  assignment  of  some  specific  instru- 
ment requires  the  joint  assent  ;  or  where  the  fund  is  deposited 
so  as  to  remain  subject  to  their  joint  check.-*  Even  thus,  culpa- 
ble carelessness  in  permitting  the  proceeds  of  the  sale,  or  trans- 
fer, or  assignment,  to  be  paid  to  one,  or  the  joint  check  collected 
by  himself  alone,  would  charge  the  co-executor  who  confided  too 
imprudently  in  his  associate.5  For  funds  he  suffers  to  be  left 
unreasonably  long  in  his  co-executor's  hands,  or  loans  to  him, 
the  executor  is  responsible  if  they  are  misapplied,  though  as  far 
as  they  are  duly  applied  in  the  course  of  administration  he  is  in- 
demnified.'' One  executor  has  no  right  to  rely  upon  the  repre- 
sentations of  his  associate,  but  is  bound  to  use  due  diligence  in 

'  Smith  z/.  Moore,  6  Dana,  417;  Bank  ^  40  N.J.  Eq.  173. 

of  Port  Gibson  v.   Baugh,  9  Sm.  &  M.  *  De  Haven  z'.  Williams,  80  Penn.  St. 

290;    Kling   V.    Hummer,    2    Pa.    349;  480.     See  Child  v.   Thorley,  L.  R.   16 

Carroll  v.  Stewart,  4  Rich.   200.     It  is  Ch.    D.    151.     A    New    York    statute 

a  well-established  principle  that  power  authorizes    the    siirrogate    to    require 

conferred  by  will  on  two  or  more  execu-  money  to  be  deposited  to  joint  credit, 

tors  or  trustees,  unless  a  different  inten-  5  Dem.  414. 

tion  is  expressed  in,  or  can  be  properly  '  Croft  7\  Williams,  23  Hun  (N.  Y.) 

inferred   from,  the  will   which  confers  102.     A  loan  by  co-executors  to  one  of 

the  power,  cannot  be  legally  and  prop-  them  is  a  breach  of  trust,  rendering  all 

erly  executed,  unless  all  the  co-executors  Hable.     Stickney  z-.  Sewell,  i  My.  &Cr. 

or  co-trustees  to  whom  such  power  is  8;  W^ms.  Exrs.  1809. 

delegated   join   in  its    execution.     See  ''  Scurfield   v.  Howes,  3  Bro.  Ch.  91  ; 

Hart  V.   Rust,  46  Tex.   556;   Adair  v.  11  Ves.  252;  Croft  z'.  Williams,  23  Hun 

Brimmer,  74  N.  Y.  539.  (N.  Y.)  102;  Lincoln  r-.  Wright,  4  Beav. 

^  Chambers  ?■.  Minchin,  7   Ves.  197  ;  427  ;    Perry   Trusts,    §    423  ;    Hays   v. 

Hovey  v.  Blakeman,  4  Ves.  608.      And  Hays,  3  Tenn.  Ch.  88. 
see  Stat.  8  &  9  Vict.  c.  91,  cited  Wms. 
Exrs.  948,  1825. 

504 


CHAP.   VI.] 


CO-ADMINISTRATION,    ETC. 


§  402 


ascertaining  for  himself  whether  those  representations  are  true.' 
And  one  may  become  privy  to  a  misappHcation  of  funds  by  his 
co-executor,  so  as  to  become  liable,  when  he  tacitly  suffers  it  to 
be  done  without  making  a  remonstrance  ;  ^  for  the  act  of  one  ex- 
ecutor may  be  considered  as  adopted  by  his  co-executor,  when 
the  latter's  conduct  virtually  amounts  to  an  assent,  however  re- 
luctantly given.'  As  a  rule  each  of  two  or  more  co-executors 
has  full  power  of  administration  ; ''  and  each  \^  prima  facie  liable 
tor  the  entire  amount  shown  to  be  due  on  their  joint  account.^ 
In  short,  an  executor  who,  by  his  culpable  negligence  or  fraud, 
suffers  his  co-executor  to  waste  the  estate,  participates  in  the 
breach  of  trust  so  as  to  render  himself  liable  to  the  benefi- 
ciaries i"^  and  each  case  of  this  kind  must  depend  largely  upon  its 
own  peculiar  circumstances,  taking  into  account  the  apparent 
knowledge  and  acquiescence  of  one  executor  in  the  acts  and 
transactions  of  the  other,  and  the  power  and  control  which  the 
former  may  have  deliberately  permitted  the  latter  to  exercise.'' 


'  Chambers  v.  Minchin,  7  Ves.  197  ; 
Shipbrook  v.  Hinchenbrook,  1 1  Ves. 
254;  Perry  Trusts,  §  423;  Clark  v. 
Clark,  8  Paige,  152.  See  Atcheson  v.' 
Robertson,  3  Rich.  Eq.  132. 

^  V^hitney  v.  Phoenix,  4  Redf.  (N.Y.) 
180;  Brown's  Accounting,  15  Abb.  Pr. 
N.  S.  457- 

^  Nelson  v.  Carrington,  4  Munf.  332. 

"•  A  debtor  of  the  estate  who  makes 
payment  bona  fide  to  one  of  several  ex- 
ecutors who  squanders  the  money  so  re- 
ceived, cannot  be  held  to  further  liabil- 
ity; for  each  executor  had  power  to 
make  collections.  Stone  v.  Union  Sav- 
ings Bank,  13  R.  I.  25.  Giving  up  the 
voucher  of  liability  to  the  debtor  dis- 
charges him  the  more  clearly.  Hyatt  v. 
McBurney,  18  S.  C.  199. 

'  Cassel's  Estate,  180  Penn.  St.  252. 

*  Holcombe  v.  Holcombe,  13  N.  J. 
Eq.  413;  Hengst's  Appeal,  24  Penn. 
St.  413;  McDowall  V.  McDowall,  i 
Bailey  Eq.  324 ;  Adair  v.  Brimmer,  74 
N.  Y.  539;  Anderson  v.  Earle,  9  S.  C. 
460;  98  Ga.  310. 


"Blake  v.  Pegram,  109  Mass.  541; 
Fonte  V.  Horton,  36  Miss.  350;  Clarke 
V.  Blount,  2  Dev.  Eq.  51.  Permitting 
one  executor  to  have  securities  for  a 
sale,  on  his  promise  to  pay  the  proceeds 
into  the  joint  account,  which  promise 
he  failed  to  keep,  is  not  necessarily  such 
culpable  negligence  as  charges  the  other 
co-executors  who  thus  confided,  espe- 
cially if  that  co-executor  was  under 
bonds  or  gave  good  security.  Adair  v. 
Brimmer,  74  N.  Y.  539.  But  where  ex- 
cessive payments  are  made  or  moneys 
drawn  by  one  executor,  with  the  con- 
sent or  acquiescence  of  the  others,  out 
of  a  fund  which  has  been  collected  and 
has  come  into  their  joint  possession  and 
control,  they  all  become  liable  to  make 
the  excess  good  to  beneficiaries  whose 
rights  under  the  will  are  at  any  stage 
impaired  thereby.  So,  too,  where  an 
executor,  by  his  negligence,  suffers  his 
co-executor  to  receive  and  waste  the  e.s- 
tate,  when  he  might  by  proper  care  have 
prevented  it,  he  is  liable  to  the  bene- 
ficiaries for  the  waste.      lb.      Where 


505 


§  40-  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

And  for  wrongful  knowledge  and  connivance  at  his  co-executor's 
misconduct  he  is  more  strongly  answerable  than  for  carelessness 
with  honest  intent.' 

But  one  of  several  executors  has  no  inherent  authority  to 
borrow  money  without  the  assent  of  the  others  ;  nor  is  such  as- 
sent to  be  assumed  from  the  fact  that  the  loan  procured  was 
for  the  benefit  of  the  estate.^  It  is  held  that  one  cannot  alone 
create  a  pecuniary  liability  by  his  purchase.^  And  that  where 
one  knows  of  a  superior  debt,  and  conceals  the  fact  from  his 
co-executor,  the  latter  shall  not  be  considered  guilty  of  a  devas- 
tavit, by  paying  the  inferior  debt."*  For  the  proceeds  of  a  claim, 
known  to  one  only  of  the  co-executors,  and  collected  by  him,  or 
for  other  assets  coming  to  his  secret  possession,  he  alone  ought 
prima  facie  to  be  held  accountable.  In  general,  therefore, 
where  an  executor  performs  acts  outside  the  usual  scope  of  au- 
thority incidental  to  administration,  thereby  rendering  himself 
and  not  the  estate  immediately  liable,  it  can  usually  impute  no 
blame  to  his  co-executor,  who  was  ignorant  thereof,  that  the 
latter  took  no  precaution  to  save  the  estate  from  loss ;  and 
hence,  such  co-executor  is  not  to  be  held  responsible,  unless,  at 
all  events,  he  was  culpably  careless  in  procuring  knowledge  of 
the  transaction,  or  in  acting  upon  such  knowledge  after  he  had 

money  which  should  have  been  invested  was  in  fact  in  the  sole  charge  of  A.,  and 

was  permitted  to  accumulate  and  was  B.  died  four  years  after;  and  six  years 

used  and  lost  in  the  business  of  the  after  A.'s   death  B.  absconded,  having 

executor  who  received  the  money,  the  been  of  good  repute;  and  three  years 

co-executor  was  held  liable  ;  but  not  for  later  an  attempt  was  made  to  charge 

the  other  executor's  act  in  pledging  se-  A.'s    estate ;    the   court    refused    such 

curities  of  the  estate  for  his  own  bene-  relief.     Young's  Appeal,  99  Penn.  St. 

fit.  Wilmerding  57.  McKesson,  103  N.  V.  74.     Where  two  executors  send  mer- 

329.  chandise  [e.g.  cotton)  abroad  to  be  sold. 

An  executor  cannot  be  charged  in  his  either  may  draw*  for  the  proceeds  of 

probate  accounts  with  money  that  never  sale;  and  if  one  draws  and  misappro- 

came  to  his  hands  but  to  the  hands  of  priates,  the  latter  unless  at  fault  is  not 

his  co-executor;  but  his  liability,  if  any,  liable.       Tompkins   v.    Tompkins,    18 

for  negligence  is  enforceable  in  equity  S.  C.  i. 

only.     Duncan  v.  Dawson,  40  N.  J.  Eq.         '  Wilmerding  z'.  McKesson,  103  N.  V. 

535.     The  possible  loss   he  may  have  329.     Good  faith   may  keep  him  from 

occasioned  the  estate  is  an  important  being  charged  compound  interest, 
element  in  such  liability.     50  N.  J.  Eq.         -Bryan  t'.  Stewart,  S3  N.  \'.  270. 
8.     And  where  co-executors  filed  a  joint         ^  Scruggs  t'.  Driver,  13  Ala.  274. 
account  admitting  a  cash  balance,  which         *  Hawkins  v.  Day,  Ambl.  162. 

506 


CHAP.  VI.] 


CO-ADMINISTRATION,    ETC. 


§   403 


gained  it.  For  his  own  fraud  alone,  or  his  own  negligence, 
whether  as  a  contributory  or  otherwise,  should  each  executor  be 
held  char  "cable.' 


§  403.  Co-Executors  ;  Actions  by  and  against.  —  All  executors 
should  join  in  bringing  actions  on  behalf  of  the  estate,^  and  cor- 
respondingly should  be  sued  together.  But  if  one  executor  con- 
tracts alone  on  his  own  account,  it  would  appear  that  he  must 
sue  alone  on  such  contract,  notwithstanding  the  proceeds  recov- 
ered will  be  assets.^  And  upon  a  sale  of  assets  made  by  him- 
self alone,  he  doubtless  may  sue  for  the  price,  not  naming  him- 
self executor  ;  ■♦  so,  if  goods  be  taken  out  of  the  possession  of 
one,  he  may  sue  alone  to  recover  them. 5 


'  Directions  in  a  will,  which  vest  a  pe- 
culiar confidence  and  control  of  assets 
in  one  of  the  executors,  may  be  set  up 
by  the  co-executor  as  relieving  him  spe- 
cially of  an  abuse  by  the  other  which 
was  without  his  own  participation.  Van- 
pelt  V.  Veghte,  14  N.  J.  L.  107.  Where 
the  testamentary  functions  are  divided 
by  the  will,  and  each  confines  himself 
to  his  allotted  functions,  the  liability 
appears  to  be  several  and  not  joint. 
Girod  V.  Pargoud,  1 1  La.  Ann.  329. 
But  co-executors  are  not  authorized  to 
divide  the  management  of  the  estate 
between  themselves,  so  that  each  shall 
take  sole  charge  of  a  certain  part. 
Bermingham  v.  Wilcox,  120  Cal.  467. 
Cf.  as  to  a  surcharge,  Mueller's  Es- 
tate, 190  Penn.  St.  601. 

-  Wms.  Exrs.  956,  1867,  and  Perkins's 
note;  i  Chitty  PI.  i6th  Am.  ed.  21,  23  ; 
Bodle  V.  Hulse,  5  Wend.  313.  Advan- 
tage should  be  taken  of  non-joinder, 
however,  by  a  plea  in  abatement,  i 
Saund.  291  ;  i  Chitty  PI.  i6th  Am.  ed. 
23;  Packer  v.  Willson,  15  Wend.  343; 
Wms.  E.xrs.  1868.  The  common  law- 
appears  to  have  insisted  that  even  those 
neglecting  or  renouncing  probate  should 
join  in  the  action,  i  Salk.  3;  9  Co. 
37  a;  Creswick  v.  Woodhead,  4  M.  & 
Gr.  811.     But  this  formality  is  incon- 


sistent with  equity  practice,  and,  indeed, 
with  our  whole  modern  theory  of  pro- 
bate, which  insists  that  only  executors 
who  qualify  and  receive  the  probate  cre- 
dentials shall  be  required  or  entitled 
to  sue.  Davies  v.  Williams,  i  Sim.  8 ; 
Thompson  v.  Graham,  i  Paige,  3S4 ; 
Rinehart  v.  Rinehart,  15  N.  J.  Eq.  44; 
Heron  v.  Hoffner,  3  Rawle,  393 ;  Al- 
ston V.  Alston,  3  Ired.  447.  Modern 
practice  acts  are  to  the  same  puiport. 
Moore  v.  Willett,  2  Hilt.  522.  And  in 
England,  under  the  recent  probate  act, 
the  rule  has  been  altered  so  as  to  har- 
monize with  this  theory.  Wms.  Exrs. 
286 ;  Act  20  &  21  Vict.  c.  77,  §  79.  Co- 
executors,  when  sued,  may  plead  differ- 
ently. Wms.  Exrs.  1942;  i  Stra.  20; 
I  Roll.  Abr.  929 ;  Geddis  v.  Irvine,  5 
Penn.  St.  308.  Where  one  of  two  co- 
executors  presents  his  account  the  other 
may  contest  it.     4  Dem.  364. 

The  release  of  one  co-executor  from 
liability  does  not  discharge  the  other, 
especially  if  the  latter  be  the  real  party 
to  blame.     74  Cal.  199. 

3  Heath  v.  Chilton,  12  M.  &  W.  632. 

■I  Brassington  v.  Ault,  2  Bing.  177; 
Wentw.  Off.  Ex.  224 ;  Wms.  Exrs.  91 1  ; 
Aiken  v.  Bridgman,  37  Vt.  249;  Lay- 
cock  V.  Oleson,  60  111.  30. 

-'  Wms.  Exrs.  1 869.     See  supra,  §281. 


507 


§  404  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

As  a  rule,  co-executors  cannot  sue  or  be  sued  at  law,  by  one 
another.'  But  here,  as  elsewhere,  we  speak  of  co-executors  in 
the  modern  sense,  that  they  have  all  accepted  and  qualified 
themselves  for  the  trust.'  In  equity,  contrary  to  the  rule  of 
law,  one  executor  may  sue  another  ;  and  courts  of  equity  will 
entertain  such  proceedings  for  the  purpose  of  making  a  delin- 
quent executor  liable  to  his  co-executor,  to  force  an  account,  to 
complete  the  foreclosure  of  a  mortgage,  and  otherwise  where 
justice  requires  it,  and  there  is  no  adequate  redress  at  law.^  In 
some  States  it  is  now  held  that  an  executor  may  sue  his  co- 
executor  on  the  latter's  express  promise  ;  ^  and  in  other  special 
instances. 5  Equity  may  be  invoked  to  relieve  one  executor  from 
the  fraudulent  misconduct  of  his  co-executor,  and  to  enjoin  mal- 
administration from  being  committed.^' 

§  404.  Rights,  Duties,  and  Liabilities  of  Co- Administrators.  —  In 
respect  of  rights,  duties,  and  liabilities,  co-administrators  stand 
upon  the  same  footing  as  co-executors ;  with,  of  course,  the 
difference  that  their  functions,  being  defined  by  general  and 
positive  law,  are  scarcely  capable  of  special  variation.  Co- 
administrators are  to  be  regarded  in  the  light  of  an  individual 
person.     Their  interest  is  joint  and  entire ;  the  acts  of  one  in 

'  Wentw.   Off.  Ex.   75  ;  Wms.   Exrs.  who  comes  into  equity  has  a  bad  stand- 

gry.  ing.     Bowen  z/.   Richardson,  133  Mass. 

-  Thus,  a  creditor  of  the  deceased  who  293  ;  King  v.  Shackleford,  13  Ala.  435. 

is  made  an  executor  by  the  will,  and  ac-  ''Phillips?'.  Phillips,  1  Stew.  (Ala.)  71. 

cepts    the    office,    cannot    sue   his    co-  '  Where  one  of  the  co-executors  gives 

executor  on  the  demand.     Saunders  v.  the   debtor  a  direction  in  violation  of 

Saunders,  2   Litt.  314;  Martin  v.  Mar-  his  duty,  and  refuses  to  join  in  a  suit 

tin,  13  Mo.   36.     But   if  he   renounced  for  the  debt,  the  other  executor  may  sue 

the  trust  in  effect,  he  can;  for  he  is  then  for  the  debt,  and  join  his  co-executor 

no  executor.     Dorchester  v.  Webb,  W.  as  defendant.     Strever    v.    Feltman,  i 

Jones,  345 ;  Wms.  Exrs.  957,  and  Per-  Thomp.  &  C.  (N.  Y.)  277. 

kins'snote;   Hunter  i/.  Hunter,  19  Barb.  *>  Nason  v.   Smalley,  8  Vt.   118;    El- 

631.  mendorf  v.  Lansing,  4  Johns.  Ch.  562; 

^  Peaker'.  Ledger,  8  Hare,  313  ;  Case's  Sheehan  v.  Kennelly,  32  Ga.  145. 

Appeal,   35   Conn.    117;     Wms.    Exrs.  A  desirable  course,  in   modern  pro- 

191 1,    and  Perkins's    note;     Storms  z'.  bate  practi-ce,  where  a  co-executor  mis- 

Quackenbush,  34  N.  J.  Eq.  201  ;  Mc-  behaves  or  becomes  unsuitable  for  the 

Gregor  v.  McGregor,  35  N.  V.  218;  35  trust,  is  to  procure  his  removal  or  resig- 

N.  J.   Eq.  374;  4  N.  J.  L.  189;  56  N.  nation.     See  supra,  §  154  ;    Hesson  v. 

J.  Eq.    102.     But   not  where  the  party  Hesson,  14  Md.  8. 

508 


CHAi'.   VI. 


CO-A DM  1  N  1  ST K A  r lO X,    ETC. 


§   405 


respect  of  administration  are  taken  to  be  the  acts  of  all ; '  and 
as  to  liability  for  one  another's  acts,  the  doctrine  corresponds  to 
that  of  co-executorship.-  An  agreement  between  co-administra- 
tors that  one  of  them  alone  shall  manage  the  estate  is  pronounced 
void  as  against  public  policy. ^  Joint  administration  is  a  trust 
never  to  be  forced  upon  persons  unwilling  to  serve  together.'* 


§  405-    Survivorship  among  Co-Executors  or  Co- Administrators. 

—  The  authority  of  an  executor,  as  we  have  observed,  is  not 
determined  by  the  death  of  his  co-executor,  but  survives  to  him.^ 
And  so,  too,  is  it  with  co-administrators.''  Where,  however, 
the  will  gives  a  power  (as  for  selling  lands)  to  several  executors, 
and  one  of  them  dies,  it  has  been  a  question  whether  the  sur- 
vivor or  survivors  can  exercise  that  power  ;  but  judicial  inclina- 
tion must  be  to  decide  in  the  affirmative, ^  wherever  the  terms  of 
the  will   admit  of  a  favorable  construction.''     A  power  to  sell 


'  One  of  two  joint  administrators  may 
realize  a  right  of  action  which  belonged 
to  the  decedent.  Bryan  ?'.  Thompson, 
7  J.  J.  Marsh.  587  ;  Gage  v.  John.son,  i 
McCord,  492 ;  Murray  v.  Blatchford,  i 
Wend.  583.  And  see  Rick  v.  Gilson,  i 
Penn.  St.  54.  But  a  note,  being  made 
payable  to  the  co-administrators,  one 
alone  cannot  assign  it.  Sanders  v. 
Blain,  6  J.  J.  Marsh.  446.  And  as  to 
part  payment  to  one  of  several  admin- 
istrators, see  GuUedge  v.  Berry,  31  Miss. 
346. 

^  Johnson  v.  Corbett,  1 1  Paige,  265  ; 
Jeroms  v.  Jeroms,  18  Barb.  24.  Lord 
Hardwicke  once  attempted  a  distinction 
as  between  co-executors  and  co-adminis- 
trators, the  latter  being  appointed  solely 
by  the  ordinary.  Hudson  v.  Hudson, 
1  Atk.  460.  But  the  dictiivi  was  after- 
wards disapproved.  Jacomb  v.  Har- 
wood,  2  Ves.  Sen.  268  ;  Smith  v.  Everett, 
27  Beav.  445;  Wms.  Exrs.  950.  But 
see  Gordon  v.    Finlay,  3  Hawks,  239. 

^Wilson  V.  Lineberger,  94  N.  C.  641. 

*Erubaker's  Appeal,  98  Penn.  St.  21. 

^  Flanders  v.  Clarke,  3  Atk.  509 ; 
supra,    §51;    Anderson    v.    Stockdale, 


62  Tex.  54.  An  executor  appointed  by 
the  surviving  executor  in  the  place  of 
the  deceased,  under  a  provision  in  the 
will,  is  also  clothed  with  the  trust  estate 
in  the  place  of  his  predecessor.  Mul- 
ford  V.  Mulford,  42  N.  J.  Eq.  68. 

^Cas.  temp.  Talb.  127;  Wms.  Exrs. 
911,  951.  It  is  thus,  in  general,  where 
one  of  the  representatives  is  removed  or 
allowed  to  resign  the  trust.  See  supra, 
§41  ;  Shelton  v.  Homer,  5  Met.  462. 

^  Wms.  Exrs.  954-956  ;  Co.  Litt.  113a, 
and  Hargrave's  note ;  i  Sugd.  Pow. 
144,  6th  ed. ;  Brassey  v.  Chalmers,  16 
Beav.  231  ;  s.  c.  4  De  G.  M.  &  G.  528. 

^i  Sugd.  Pow.  141  ;  Wms.  Exrs.  7th 
ed.  954 ;  Goulds'.  Mathers,  104  Mass. 
283.  Where  the  number  of  co-execu 
tors  is  lessened  by  one  renouncing 
probate  a  similar  question  of  testamen- 
tary construction  may  arise.  Granville 
7'.  McNeile,  7  Hare,  156.  If  the  power 
is  conferred  upon  co-executors  in  their 
official  capacity  and  not  by  name  as 
individuals,  the  disqualification  of  one 
leaves  the  power  in  the  other.  54  N.  J. 
Eq.  108. 


509 


§  405  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

which  arises  from  impHcation,  instead  of  being  expressed,  is  held 
to  survive,  as  among  co-executors,  in  the  same  manner.'  Even 
where  the  power  itself  is  extinguished,  equity  will  interpose  to 
avert  mischievous  consequences,  by  compelling  the  person  having 
the  legal  estate  to  execute  it.' 

The  personal  representative  of  a  deceased  co-executor  cannot, 
according  to  the  old  rule  of  common  law,  be  sued  by  his  survivor 
in  the  trust,  for  a  debt  due  to  their  testator,^  nor  in  respect  to  a 
breach  of  trust.  But  our  modern  practice  acts  relax  this  doc- 
trine to  a  considerable  extent. ■♦  In  equity,  moreover,  the  sur- 
viving executor,  if  himself  innocent  of  participation  in  the  wrong, 
may  file  a  bill  to  have  set  aside  a  transaction  committed  in 
breach  of  trust,  by  his  associate,  during  his  lifetime  ;  5  nor,  a-s,  it 
is  held,  does  the  fact  of  his  having  taken  6ut  administration  upon 
the  estate  of  the  executor  who  misconducted  in  the  trust,  dis- 
qualify him  from  maintaining  his  suit.^  Redress  is  granted  by 
equity  in  other  instances,  on  behalf  of  the  surviving  executor  or 
executors.7 

So,  too,  is  a  bill  in  equity  maintainable  by  the  personal  rep- 
resentative of  one  executor  or  administrator  against  the  surviv- 
ing executor  or  administrator,  for  account  and  settlement  of 
affairs  arising  out  of  the  joint  administration.^ 

'  Wms.    Exrs.    655,    955 ;  Forbes   t>.  dies,    resigns,  or  is  removed,  the   sur- 

Peacock,    1 1    M.   &   W.   630 ;  4    Kent  vivor,   as   riglitfully  entitled   to   assets, 

Com.  325-327 ;  Treadwell  v.   Cordis,  5  may  sue  him  or  his  estate  at  law;   at 

Gray,  341  ;    Peter  v.  Beverly,    10    Pet.  least  if  it  be  upon  a  promissory  note  or 

532 ;  Wms.    Exrs.   955,    and    Perkins's  instrument  executed  by  the  late  associ- 

note.  ate.     Hendricks  7a  Thornton,  45  Ala. 

^Sugd.    Pow.   144;  Wms.    Exrs.  956.  299. 

For   co-executors  to  execute  a  power  ^  See,  as  to  setting  aside  a  mortgage 

in   favor   of    one   of   the   co-executors  of  assets,  made  by  the  deceased  execu- 

named,  who  has  renounced  or  resigned,  tor  in  breach  of  trust,  Miles  v.  Durn- 

appears  upon  some  controversy  to  be  ford,  2  De  G.  M.  &  G.  641.     And  see 

legal.     Mackintosh   v.   Barber,   i    Bing.  Turner  v.  Wilkins,  56  Ala.  173. 

50.     But   equity  may  well  refuse  coun-  *"  Miles  v.  Durnford,  supra. 

tenance  to  an  execution  of  this  kind,  as  '  As  for  enforcing  a  decree  against 

being  contrary  to  good  policy  and  a  tes-  the  late  co-executor,  see  Chew's  Appeal, 

tator's  presumed  intention.     Shelton  z/.  2  Grant  (Pa.)  294. 

Homer,  5  Met.  467  ;  Wms.  Exrs.  953.  *  Huff  v.  Thrash,  75  Va.  546.     And 

^Wentw.  Off.  Ex.  75;    Wms.  Exrs.  see  Fitzsimmons  v.  Cassell,  98  111.  332. 

957.  An  administrator  cannot  maintain  a  suit 

'When  an  executor  or  administrator  in  equity  to  compel  his  co-administrator 


CHAP.   VI.] 


CO-ADMINISTRATION,    ETC. 


§  406 


§  406.  Liability  of  Co-Executors  and  Co-Adiuiuiatrators  on 
Bonds ;  Joint  or  Several  Bonds.  —  Where  co-executors  or  co- 
administrators qualify  by  giving  bond  to  the  judge  of  probate, 
as  they  are  usually  in  modern  practice  compelled  to  do  before 
letters  can  issue  to  them/  the  form  of  the  bond  executed  may 
affect  very  seriously  their  liability,  and  that  of  their  sureties,  to 
persons  interested  in  the  estate.  Co-executors  or  co-adminis- 
trators, who  give  a  joint  and  several  bond,  render  themselves 
jointly  and  sev^erally  liable  as  principals  for  waste  committed  by 
either,  though  without  fault  upon  the  part  of  both,  and  for  the 
proper  administration  of  all  assets  which  come  to  their  posses- 
sion and  knowledge.^  This  liability  covers  all  breaches  of  the 
bond  and  devastavit,  occurring  while  the  joint  relation  con- 
tinues.' 

Chancery  will  enforce  where  it  may,  a  just  contribution  as 
between  the  joint  executors  in  all  such  cases.''     And  such  joint 


to  account  for  and  pay  over  to  him  cer- 
tain claims  alleged  to  be  due  from  the 
defendant  as  debtor  to  the  estate. 
Whiting  7^.  Whiting,  64  Md.  157.  For 
counter-claims  would  here  arise,  and  the 
suit  is  an  obstruction  to  a  proper  settle- 
ment. 

^  Supra,  §  145. 

^  Brazer  v.  Clark,  5  Pick.  96  ;  Hugh- 
lett  V.  Hughlett,  5  Humph.  453 ;  New- 
ton V.  Newton,  53  N.  H.  537  ;  Marsh  v. 
Harrington,  18  Vt.  150;  Pearson  v. 
Darrington,  32  Ala.  227.  Nor  can  one 
allege  that  the  other  took  exclusive 
possession,  and  that  no  assets  came 
into  his  own  hands.  State  v.  Hyman, 
72  N.  C.  22.  Where  two  or  more  per- 
sons are  appointed  and  qualified  as 
executors,  and  one  is  guilty  of  a  devas- 
tavit, after  which  his  co-executors  re- 
sign, and  he  executes  a  new  bond,  such 
co-executors  are  primarily  liable  for  such 
devastavit.  Bostick  v.  Elliott,  3  Head. 
507.  As  to  the  rule  where  the  remain- 
ing executor  resigns,  and  one  of  his 
sureties  is  appointed  administrator  de 
bonis  7ion  with  the  will   annexed,   and 

51 


sufficient  indemnity  is  given  against  the 
former  devastavit,  see  ib. 

^  Towne  v.  Ammidown,  20  Pick.  535  ; 
Brazer  v.  Clark,  5  Pick.  96. 

'' Marsh  v.  Harrington,  18  Vt.  150; 
Conner  v.  Mcllvaine,  4  Del.  Ch.  30. 
And  see  Garnett  v.  Macon,  6  Call,  308. 

Notwithstanding  any  ulterior  liability 
which  one  co-executor  or  co-administra- 
tor may  have  incurred  by  reason  of  hav- 
ing executed  a  joint  bond,  the  fact  being 
that  he  has  not  intentionally  or  other- 
wise contributed  to  a  devastavit  by  his 
co-executor  or  co-administrator,  since 
deceased,  equity  will  take  cognizance 
of  his  suit  against  the  personal  repre- 
sentatives of  his  deceased  associate, 
founded  on  the  latter's  devastavit,  and 
make  such  decree  as  may  be  appropri- 
ate. Turner  v.  Wilkins,  56  Ala.  173. 
But  it  is  held  that  the  representatives 
of  one  joint  executor  are  not  in  any 
form  responsible  for  maladministration 
of  the  survivor  happening  after  the  de- 
cease of  the  former,  notwithstanding  a 
joint  and  several  bond  with  sureties 
was  given.  Brazer  v.  Clark,  5  Pick. 
I 


§   40'^  EXECUTORS    AND    ADM  IMSTKA  TORS.  [fART   IV, 

parties  are  responsible  each  for  the  acts  of  the  other  before  the 
sureties  on  their  joint  bcMul.' 

Neither  co-executors  nor  co-administrators,  we  may  add,  are 
compelled  to  give  a  joint  bond  ;  they  may  give  either  separate 
or  joint  bonds  at  their  discretion,  as  the  statutes  of  various 
States  expressly  permit ;  and  the  effect  of  giving  a  separate 
bond  is  to  lea\e  each  co-executor  or  co-administrator  simply  lia- 
ble for  his  own  default  or  misconduct,  under  the  qualifications 
set  forth  in  the  preceding  sections.- 

v^  407.  Rights,  duties  and  Liabilities  of  Administrator  •with  the 
Will  annexed.  —  Siro/K/Zy,  as  lo  the  rights,  duties,  and  liabilities 
oi  an  administrator  with  the  will  annexed.  i*'rom  what  has 
been  elsewhere  said,-'  it  may  be  gathered  that  such  rights  and 
duties  of  an  executor  as  result  from  the  nature  of  his  office 
must  devolve  upon  an  administrator  with  the  will  annexed  ;  not, 
however,  an  authority  necessarily  connected  with  some  personal 
trust  and  confidence  reposed  in  the  executor  by  the  testator.'' 
A  special  commission  or  trust  power,  conferred  by  the  will  upon 
the  executor,  does  not,  in  fact,  vest  in  such  administrator  unless 
by  implication  from  the  language  of  the  will.  Thus,  a  discre- 
tionar)'  jiowcr  lo  sell  lands  given  to  one's  executor  will  not  vest 
in  the  administrator  with  the  will  annexed,  whether  the  execu- 
tor expressly  named  died,  renounced,  or  failed,  from  some  rea- 
son, to  c|ualif>'.-'^  or  no  executin-  was  named  at   all."     S(\  where 

96.     And  if  the  survivoi  neglects  to  pay  other  surviving  in  the  tiiust.  the  latter 

over  the  amount    due  to  a  legatee,  in  may  sue  the  former's  bond.     I24N.  V.  i. 

I  onsequence  of  which  the  suretie.s  pay  ^Su/>fii,  §  123. 

it,  the  sureties  cannot    enforce  indem-  ■"  Fanvell    :•.    Jacobs,    4     Mass.   (t]\ ; 

nity  or  contribution  against  the  personal  Bain  r.  Matteson,  54  N.  V.  663;  Syme 

representatives,  heirs,  or  devisees  of  the  f.  Broughton,  S6  N.  C.  153. 

deceased    e.vecutor.      Towne  t.   .\mmi-  ■' Nicoll  t'.  Scott,  99   111.  ^2^):  I,uca> 

down,  20  Pick.  535.  .'.  Doe,  4  Ala.  679;  Brown  :■.  Hokson, 

'Jamison   f.    Lillard,    i.:    Lea,   630.  3    A.    K.    Marsh.    3S0;  McDonald    r. 

When    two    or   more    execute   a   joint  King,  i    N.  J.  L.  432  ;  Conklin  -•.  Eger- 

Ixjnd.  they  stand  in  the  relation  of  prin-  ton,  21  Wend.  430;  25  ib.  224  ;  Belcher 

cipal    and    surety;    each    as    principal  r.    Belcher.    11    R.   I.    226;  Knight    ;•. 

i/uihui  his  own  acts,  and  as  surety  quoad  Loomis,    30    Me.     204  :  Vardeman    -■. 

the  transactions  of  others.     76  Va.  85.  Ross,  36  Te.\.  1 1 1. 

'Mass.   Pub.  Stats,  c.  143,  §  3.     One  'Hall  7\  Irwin,  2  Gilm.  176.     Therr 

co-executor    being    removed    and    the  are     local     statutes,     however,     which 

512 


CHAP.    VI.J  yUAI-lllKI)    ADMINI^^TKATION.  §   407 

property  is  bequeathed  to  one's  executors,  to  be  held  in  trust  for 
specifieil  objects,  an  athninistrator  with  the  will  annexed  cannot 
as  such  fulfil  the  trusteeshiix'  Nor  has  an  adnnnistrator  with 
the  will  annexed  any  right  lo  receive  a  fund  given  in  personal 
trust  under  the  will  for  the  support  of  the  testator's  widow." 
Nor  to  carry  on  the  testator's  business  under  a  testamentary 
power,  where  that  power  appears  to  have  been  bestowed  upon 
personal  confidence.*  Where,  however,  a  devise  is  made  in 
trust  to  the  executor  named,  this  need  not  preclude  an  adminis- 
trator with  the  will  annexed  from  selling  the  land,  under  an 
order  of  court,  for  payment  of  the  testator's  debts,  should  a 
suitable  emergency  arise  ;  for  this  is  in  pursuance  simply  of  ad- 
ministratixe  functions  anncxctl  to  the  olTice,  and  not  the  person. "♦ 
And  so  where  land  is  devised  at  all  events  and  the  power  to 
sell  is  confided  to  the  executor  by  virtue  of  his  office."^  For 
where  a  power  to  sell  is  thus  confided  olTficially  to  one's  executor 
an  administrator  with  the  will  annexed  may  exercise  it ;  but  a 
purely  personal  trust  and  confidence  reposed  in  the  executor, 
actually  named  cannot  be  exercised  by  his  legal  substitute. 

Unlike  the  executor,  moreover,  an  administrator  with  the 
will  annexed  has  no  authority,  as  it  is  held  in  some  States,  to 
administer  upon  any  portion  of  the  estate  of  the  testator  not 
disposed  of  by  the  will.'' 

change  this  iu1l>  more  or  less  specifically.  "'Harper  ?'.  Smith,  9  Ga.  461  ;  Syme 

Ile.ster   t.    Hester,    2     Ired.    lu].    330;  ?'.  Broughtaii,  86  N.  C.  153.     And  see 

lirovvn    7'.    Arniistead,    6     Rand.    5()4  ;  Owens  z/.  Cowan,  7  ]}.  Men.  152  ;  Mont- 

Keefer  7'.  Schwartz,  47   Tenn.  St.  503;  gomery   v.    Millikin,    Sm.    &    M.    151; 

Evans  z'.  Blackiston,  66  Mo.  437.     And  Moody  z/.  Vandyke,  4  Binn.  31;  Dray- 

if  the  language  of  the  will  shows  a  dis-  ton  ?>.  Grimke,  i    Bailey  Eq.  392  ;  Perry 

position  on  the  testator's  part  to  permit  v.  Gill,  2  Humph.  218.     But  this  rule  is 

whomsoever  sliould  execute  the  will  to  held  inconsistent  with  the  policy  of  the 

execute   the    power,  the   administrator  New  York  legislation  as  to  such  admin- 

with  the  will  annexed  may  execute  it.  istrators.     Sullivan  ?'.  Fosdick,  17  N.  ^'. 

Jones  7>.  Jones,  2   Dev.  Eq.  387.     And  Supr.  173. 

see  7  Heisk.  315;  32  Cal.  436.  An  administrator  with    the  will    an- 

'  Brush  7'.  Young,  28  N.  J.  L.  237.  nexed  is  subject   to  the  provisions  of 

°  Warfield  7'.  Brand,  13  Bush.  77.  law  applicable  to  other  administrators, 

^  Rubottom  7'.  Morrow,  24  Ind.  202.  except  so  far  as  the  distribution  of  the 

*  Dunning  7'.   Ocean    Nat.    Bank,  61  estate  is  directed  by  the  will.     Brown, 

N.  Y.  497.  /':x  parte,  2   Brad.   (N.  Y.)   22.     As  to 

'  Cohea  7'.  Johnson,  69  Miss.  46.    And  the  liability  of  such  administrator  and 

see  §413.  his  sureties  upon  the  bond  given,  see 

33  513 


§  408  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

§  408.  Rights,  Duties,  and  Liabilities  of  an  Administrator  de 
Bonis  non.  —  Thirdly,  as  to  the  rights,  duties,  and  liabilities  of 
an  administrator  dc  bonis  non. '  Whether  administration  de  bonis 
non  is  taken  upon  a  testate  or  intestate  estate,  there  is,  in  re- 
spect of  powers  and  responsibility,  no  essential  difference  of 
principle  ;  only  that,  in  the  former  instance,  the  administration 
of  the  estate  becomes  completed  by  one  whose  scope  of  author- 
ity is  that  of  administrator  with  the  will  annexed,  and,  in  the 
latter,  by  a  simple  administrator.  The  grant  of  administration 
de  bonis  non  confers  upon  the  person  so  appointed  a  legal  title 
to  all  the  goods,  chattels,  rights,  and  credits  of  the  deceased, 
which  were  left  unadministered  by  his  predecessor ;  ^  and  this 
clearly  includes  all  chattels  and  chattel  rights  of  the  decedent 
not  already  disposed  of  or  converted  into  money  by  a  prede- 
cessor, whether  of  the  corporeal  or  incorporeal  kind. 

All  the  personal  estate  which  has  not  already  been  adminis- 
tered, but  remains  capable  of  identification,  belongs  to  the  ad- 
ministrator dc  bonis  non  specifically.  Such  property  he  may 
recover ;  and  so,  too,  funds  deposited  by  his  predecessor  in  the 
name  of  the  estate.^  But  where  the  former  representative  has 
mingled  it  with  his  own  property,  a  conversion  —  or  what  is 
called  "administration"  —  takes  place,  so  that  only  the  value 

Muiphy  7'.  Carter,  23  Gratt.  477;  Stro-  v.  Allen,  4  E.  D.  Smith,  519;  Potts  v. 

ther  z'.  Hull,  ib.  652.     For  the  liability  Smith,  3   Rawle,  361;  Bell  v.  Speight, 

of  co-administrators  with  the  will   an-  11  Humph.  451  ;  Merriam  7'.  Hernmen- 

nexed,  see  §  402  ;  Adams  7,'.  Gleaves,  10  way,  26    Vt.  565.     To  issue  letters  ^^ 

Lea,  367.  bonis  non  while  a  final  settlement  re- 

'  See  supra,  §  128,  as  to  the  appoint-  mains  in  full  force  is  void  and  may  be 

ment  of  such  administrators.  revoked  by  the  court  of  its  own  motion. 

^  Wms.  Exrs.  915,  961 ;  Wentw.  Off.  103  Ind.  223  ;  supra,  §  153.     But  where 

Ex.    462  ;    I    Salk.    306  ;    Shackelford  such  letters  are  collaterally  attacked  on 

V.    Runyan,   7    Humph.    141;  Kelly   v.  the  ground  that  there  was  no  vacancy, 

Kelly,  9  Ala.  908 ;   Paschall  v.  Davis,  3  the   fact    that    there   was   no    vacancy 

Ga.  256  ;  American  Board's  Appeal,  27  should  be  affirmatively  shown.     70  Ala. 

Conn.  344  ;  Gregory  v.  Harrison,  4  Fla.  140. 

56;  Gilbert  v.   Hardwick,   11    Ga.  599;  ^  Stair  z*.  York  Nat.  Bank,  55   Penn. 

Newhall  v.  Turney,  14   111.  338;  Shaw-  St.  364.     And  so,  too,  apparently,  with 

han  V.   Loffer,  24   Iowa,   217;    Carroll  investment  securities  taken  for  the  es- 

V.  Connet,  2  J.  J.  Marsh.   195;  Alexan-  tate  by  his  predecessor.     King  z/.  Green, 

der  V.  Stewart,  8  Gill  &  J.  226;  Har-  2  Stew.  133.     But  Saffran  z/.  Kennedy, 

ney  v.   Dutcher,   15   Mo.  89;   Morse  v.  7  J.  J.  Marsh.  188,  is  contra. 
Clayton,  13  Sm.  &   M.  373;  McMahon 


CHAP.   VI.]  QUALII'IEL)    ADMINISTRATION.  §   408 

thereof  can  be  recovered,  and  the  administrator  dc  bonis  non 
becomes  a  creditor,  with  no  preference,  so  to  speak,  but  secured 
by  his  predecessor's  official  bond.'  An  action  will  not  lie  at 
common  law  against  the  predecessor  for  the  reco\ery  of  assets 
converted  by  him  ;  nor,  as  it  is  held,  has  the  administrator  de 
bonis  non  any  right  to  call  for  an  accoiuit  of  any  part  of  the 
estate  sold,  converted,  or  wasted  by  his  predecessor,  since  it  is 
not  "unadministered."^  Hence,  the  stricter  practice  is  for  the 
distributees  or  creditors  to  the  original  decedent,  or  others  in 
interest,  and  not  the  administrator  de  bonis  non  of  the  estate,  to 
seek  an  account  and  to  prosecute  the  representatives  of  a  de- 
ceased predecessor  in  the  trust,  in  respect  of  his  maladministra- 
tion.^  This  old  rule  applied  literally,  however,  where  the  former 
executor  or  administrator  had  died  in  the  office ;  and  modern 
statutes,  not  unfrequently  permit  of  a  different  rule  for  other 
cases,  such  as  removal  or  resignation  of  one's  predecessor  ;  ■♦  and 
even,  as  consistency  requires,  so  that  the  administrator  dc  bonis 
non  himself  may  compel  an  accounting  and  delivery  of  assets  as 
against  the  personal  representatives  of  a  deceased  predecessor.^ 

'  Beall  V.  New  Mexico,  16  Wall.  535;  administrator  de  bonis  non  cannot  sue 

Wms.  Exrs.  916,  and  Perkins's   note;  the  agent  to  recover  it.     Wilson  z".  A r- 

34    Ark.    144;  7    Mo.    469;  Hodge   v.  rick,  112   U.  S.  83.     Both  at  common 

Hodge,  90  Me.  505;   153  Penn.  St.  345.  law  and  under  the  act  of  Congress  of 

^Cheatham  v.  Burfoot,  9  Leigh,  580 ;  local  force  in  the  District  of  Columbia 

Smith    V.    Carrere,    i    Rich.    Eq.    123;  an  2idm.ims,\.r2i\.ox  de  bonis /ion  has  title 

Stubblefielcl  v.   McRaven,  5  Sm.  &  M.  only  to  the  goods  and  personal  property 

130;  Oldham  z'.  Collins,  4  J.  J.  Marsh.  49.  which  remain  in  specie  and  have  not  been 

^  Beall  V.  New  Mexico,  16  Wall.  540 ;  administered.     And  this  too  where  the- 

Rowans'.  Kirkpatrick,  14  111.8;  Stose  former  administrator  was  removed  in- 

V.  People,  25  111.  600,  and  cases  cited;  stead  of  dying  in  office.     United  States 

Wms.    Exrs.   539,   915,    and    Perkins's  v.   Walker,    109   U.   S.    258.     Nor  can 

notes;  Johnson  v.  Hogan,  37  Tex.  77  ;  such    successor   sue    upon    the    prede- 

Young    V.    Kimball,    8    BlacW.     167 ;  cessor's  bond  to  recover  such  moneys. 

Thomas  v.  Stanley,  4  Sneed,  411.  lb.     In  some  States  the  rule  is  the  re- 

*  Marsh  v.  People,  15  111.  284.  verse.     Balch  7'.  Hooper,  32  Minn.  158. 

5  Walton  V.  Walton,  4  Abb.  (N.  Y.)         In  Wms.  Exrs.  539,  it  is  said  that  if 

App.  512;  Knight  v.  Lasseter,   16  Ga.  the    original    administrator  were  dead, 

151 ;    Tracy  v.   Card,  2   Ohio  St.  431;  and    administration  de   bonis   -non   had 

Palmer  v.  Pollock,  26   Minn.  433;  Car-  been  obtained,  it  was  held  that  such  ad- 

ter  z'.  Trueman,  7  Penn.  St.  320.    Where  ministrator  might  sue  the  executors  of 

the  agent  of  a  former  administrator  col-  the  deceased  administrator  at  law  on 

lects  a  debt  due  the  estate,  it  is  in  this  the  administration  bond  in  the  name  of 

sense  an  administered  asset;  and  the  the  ordinary.     But  this  is  denied  by  Mr. 


§4o8 


EXECUTORS    AND    ADMINISTRATORS,  [PART   IV. 


The  unadministered  property  vests  in  the  administrator  dc 
bonis  non  for  completing  the  proper  settlement  of  the  estate- 
A  balance  due  from  the  predecessor,  whether  rendered  volun- 
tarily by  the  predecessor  himself,  or  by  his  representative  in 
case  of  his  death,  or  obtained  by  a  suit  on  the  predecessor's  pro- 
bate bond,  belongs  by  right  to  the  successor  as  assets,  and  should 
be  paid  into  his  hands.'  He  is  preferred  to  a  creditor  of  his 
predecessor  in  reaching  a  fund  which  is  properly  assets.''  And 
it  is  held  that  the  administrator  dc  bonis  non  should  inventory 
at  their  just  valuation,  and  account  for  all  chattels  belonging  to 
the  decedent's  estate  which  his  predecessor  has  not  properly 
sold  or  disposed  of,  and  which  still  exist,  pursuing  them  or  their 
value ;  and  such  chattels,  being  a  part  of  the  estate  which  the 
predecessor  has  received,  and  not  applied  in  any  manner  accord- 
ing to  his  official  duty,  he  may  be  charged  with  their  value  in 
an  action  on  his  official  bond.^  He  cannot  be  allowed  to  use  his 
trust  as  a  cloak  to  his  predecessor's  obligations.'' 


Justice  Bradley  in  Beail  v.  New  Mexico, 
1 6  Wall.  540,  who  states  the  nile  of  the 
Mnglish  ecclesiastical  courts  as  instead, 
in  effect,  that  the  Habihty  is  to  the  cred- 
itors, legatees,  and  distributees  directly, 
and  not  to  the  administrator  de  bonis 
tiott.  And  he  explains  Hall,  Goods  of 
(i  Hagg.  139),  relied  upon  to  sui:fport 
the  text  in  Wms.  Exrs.  539,  supra,  as 
justifying  no  more  than  the  right  of  the 
administrator  de  bottis  non  to  pursue 
specific  assets  of  the  estate,  and,  if  these 
are  refused,  instituting  a  suit  on  the 
bond  for  them.  But  thi.s,  he  adds,  is 
perfectly  consistent  with  the  doctrine 
"  that  for  delinquencies  and  devastavits 
he  cannot  sue  his  predecessor  or  his 
predecessor's  representatives,  either  di- 
rectly or  on  their  administration  bond." 
16  Wall.  541.  But  qti.  whether  English 
ecclesia-stical  courts  ever  dealt  with 
bonds  of  a  predecessor  who  had  been 
removed  or  resigned.  See  supra,  §  1 57. 
We  may  conclude  that,  as  to  delinquen- 
cies of  a  deceased  predecessor,  the  rule 
prevails,  as  stated  by  Mr.  Justice  Brad- 
ley, where  the  law  has  not  been  changed 

5 


by  statute.  Cases  cited  in  this  section, 
supra  ;  Wms.  Exrs.  539,  and  Perkins's 
note.  And  see  Gray  v.  Harris,  43  Miss. 
421,  as  to  the  form  of  a  decree  of  a  bal- 
ance found  against  the  predecessor  on 
final  settlement. 

'  Wiggin  V.  Swett,  6  Met.  197  ;  Palmer 
V.  Pollock,  26  Minn.  433;  24  Neb.  712. 

^  Marvel  v.  Babbitt,  143  Mass.  226. 

^  Fay  V.  Muzzey,  15  Gray,  53,  56. 
And  see  Burnley  v.  Duke,  2  Rob.  (Va.) 
102.  A  balance  justly  due  from  the 
predecessor  may  be  recovered,  though 
used  improperly  in  paying  out  debts 
and  expenses.  Miller  v.  Alexander,  i 
Hill  Ch.  (S.  C.)  499.  If  a  deceased 
representative  has  disposed  of  all  the 
property  of  his  decedent,  no  proceed- 
ings can  be  had  to  charge  it  without  ap- 
pointing an  administrator  de  bonis  non. 
Piatt  V.  St.  Clair,  5  Ohio,  556.  See, 
also,  supra,  §  128,  as  to  granting  such 
administration  for  the  protection  of  dis- 
tributees, etc. 

••An  administrator  was  removed  who 
owed  the  estate  ?i  2,000 ;  the  sole  surety 
on  his  bond  for  i^  10,000  was  appointed 
16 


CHAP.   VI.] 


QUALIFIED    ADMIMSTKATIOX. 


§  409 


§409.  The  same  Subject. — The  administrator  derives  title 
as  to  the  iinadministcred  assets,  not  from  the  former  executor  or 
administrator,  but  from  the  deceased.'  And  the  occasion  which 
calls  for  his  appointment  forces  him  often  into  antagonism  with 
his  predecessor  or  his  predecessor's  representatives,  to  rescue 
the  estate  from  maladministration  and  pursue  the  remedies  avail- 
able for  his  predecessor's  breach  of  trust.  He  may  get  back 
personalty  of  the  estate,  or  its  proceeds,  wrongfully  delivered  by 
the  former  executor  or  administrator,  and  still  held  as  a  fund 
capable  of  identification.-  He  may,  by  proceedings  in  equity,  re- 
cover chattels  fraudulently  and   collusively  transferred  by  the 


administrator  de  bonis  non  ;  and  it  was 
held  that  the  latter  must  charge  himself 
with  theSio,ooi_  as  assets.  21  Neb.  233. 
See  supra,  §  208. 

'  Catherwood  v.  Chabaud,  i  B.  &  C. 
154;  Weeks  v.  Love,  19  Ala.  25;  Bell 
V.  Speight,  II  Humph.  451  ;  American 
Board's  Appeal,  27  Conn.  344 ;  Bliss  v- 
Seaman,  165  111.  422;  supra,  §  128; 
Wms.  Exrs.  961.  Each  administrator 
de  bonis  non  derives  his  title  from  the 
deceased.     Weeks  v.  Love,  supra. 

^  Stevens  v.  Goodell,  3  Met.  34  ;  Fay 
V.  Muzzey,  13  Gray,  53. 

In  Slaymaker  z^.  Farmers'  Bank,  103 
Penn.  St.  616  (1883),  the  rights  of  the  ad- 
ministrator de  bonis  non  and  under  the 
provisions  of  the  Pennsylvania  statute 
are  discussed  at  length.  Admitting  that 
all  assets  of  the  estate  in  the  hands  of 
a  third  person  at  the  death  of  the  fornier 
administrator  or  executor,  may  be  taken, 
if  distinguishable,  by  the  administrator 
de  bonis  non,  the  collection  of  debts  due 
or  the  disposition,  change,  or  alteration 
of  such  assets  will  protect  them  from 
such  administrator's  claims  as  unad- 
ministered  goods ;  and  if  the  goods  are 
changed  or  altered,  and  remain  no 
longer  in  specie,  or  have  been  disposed 
of,  the  administrator  de  bonis  non  cannot 
claim  them  ;  and  so  of  the  debts,  unless 
they  be  such  as  grow  out  of  contracts  to 

51 


which  the  testator  or  intestate  was  a 
party,  for  otherwise  they  cannot  be  said 
to  be  debts  due  and  owing  to  the  dece- 
dent (3  Rawle,  361).  Hence,  upon  the 
death  of  the  representative  before  the 
settlement  of  his  account,  his  executor 
or  administrator  may  recover  from  a 
bank  the  balance  .standing  to  the  credit 
of  a  deposit  account,  which  he  had 
opened  there  in  his  representative  ca- 
pacity ;  nor  is  the  bank  justified  in  pay 
ing  it  over  to  an  administrator  de  bonis 
non  of  the  decedent  for  whose  estate  he 
had  opened  this  account.  Slaymaker  ?'. 
Farmers'  Bank,  ib.  For,  in  American 
practice,  at  least,  such  a  fund  is  likely 
to  be  reduced  by  disbursements,  ex- 
penses, and  compensation  for  services 
on  behalf  of  the  representative  who 
opened  it ;  and  his  successor  is  only  en- 
titled to  the  balance  after  proper  de- 
ductions. See  also  Foster  -'.  Bailey, 
157  Mass.  160.  Before  the  representa- 
tive of  a  deceased  executor  or  adminis- 
trator can  be  compelled  to  turn  over  to 
the  new  administrator  de  bonis  non,  he 
ought  to  have  an  opportunity  to  settle 
the  accounts  of  the  deceased  and  ascer- 
tain whether  the  estate  owes  the  latter. 
Ib. 

Local  codes  define  to  some  extent 
the  rights  and  liabilities  of  an  adminis- 
trator de  bonis  non. 


§  409 


EXFXUTOKS    AXn    ADMINISTRATORS.  [PAKT    W 


predecessor.'  lie  may  demand  an  account  in  equity  a<^ainst  his 
predecessor  and  his  sureties.-  He  may  demand  and  sue  for  as- 
sets of  the  decedent's  estate  in  the  hands  of  a  former  executor 
or  administrator,  or  his  representative,^  or  in  possession  of  some 
third  part\'.-'  He  may  reco\'er  personal  property  wrongfully 
pledged  or  mortgaged,  subject  to  the  usual  equities.^  He  is  not 
estopped  by  the  illegal  acts  of  his  predecessor.'''  And  he  may 
sue  the  latter,  although  there  are  no  creditors,  and  the  object  of 
his  administration  is  to  protect  the  rights  of  heirs  and  legatees 
or  distributees.'  In  general,  he  may  institute  proceedings,  in 
law  or  equity,  as  justice  may  require,  for  personal  assets  which 
remain   unadministered  ;  '^  but  the  lien  claim  of  his  predecessor 


'  Wms.  Exrs.  918,  935;  Cubbidge  v. 
Boatwright,  i  Russ.  Ch.  Cas.  549  ;  For- 
niquet  v.  Forstall,  34  Miss.  87  ;  Cochran 
V.  Thompson,  18  Tex.  652.  He  may 
like^\^se  maintain  a  bill  in  equity,  where 
the  estate  is  insolvent,  to  have  a  fraud- 
ulent sale  of  real  estate  by  his  prede- 
cessor set  aside,  and  the  deed  can- 
celled. Forniquet  ?'.  Forstall,  supra. 
Todd  V.  Willis,  66  Tex.  704.  But  cf. 
Thompson  j^  Buckner,  2  Hill  Ch.  (S.  C.) 
499.  The  South  Carolina  rule  appears 
to  be  different.  Steele  7'.  Atkinson,  14 
S.  C.  1 54.  And  it  is  there  held  that  a 
fraudulent  collusion  to  misapply  assets 
may  be  assailed  by  creditors  and  dis- 
tributees, but  not  by  the  successor  in  the 
trust.     lb. 

A  purchaser  not  privy  to  the  fraud 
cannot  be  thus  denuded  of  his  title.  lie- 
fore  enforcing  a  claim  against  the  estate 
of  the  former  executor  or  administrator 
the  latter's  accountability  should  be  de- 
termined in  probate  court.     67  Vt.  485. 

=  Whitaker?'.  Whitaker,  12  Lea,  393. 
See  §  408. 

'  Stair  7'.  'N'ork  Nat.  Bank,  55  Penn. 
St.  364. 

*  Langford  7j.  Mahoney,  4  Dru.  & 
War.  81  ;   Wms.  Exrs.  916. 

5  Hendrick  v.  Gidney,  1 14  N.  C.  543. 

^  Bell  V.  Speight,  1 1  Humph.  451. 

'  Scott  7/.  Crews,   72  Mo.  261.     The 

5 


next  of  kin  should  not  sue  the  represen- 
tative of  the  predecessor ;  but  the  ad- 
ministrator df  bonis  non  shoidd.  Ham 
V.  Kornegay,  85  N.  C.  119.  See  §  408. 
®  Wms.  Exrs.  9(6,  and  Perkins's  note. 
The  husband  of  a  sole  distributee  of 
the  intestate  cannot  resist  a  recovery 
by  such  administrator  on  the  ground 
that  he  has  paid  all  the  debts  and  taken 
possession  of  the  personal  property. 
Spencer  ?■.  Rutledge,  1 1  Ala.  590.  Nor 
can  the  sole  distributee.  And  see  Elli- 
ott V.  Kemp,  7  M.  &  W.  306. 

If  an  administrator,  after  his  removal 
from  the  office,  collects  money  recov- 
ered by  him  as  administrator,  he  may 
be  sued  in  assumpsit  by  the  administra- 
tor dc  bonis  non,  as  for  money  had  and 
received  to  the  latter's  use.  Salter  7'. 
Cain,  7  Ala.  478.  Money  collected  by 
the  former  representative's  attorney  on 
a  demand  placed  in  his  hands  is  not  as- 
sets to  be  claimed  directly  by  the  new- 
representative,  but  should  be  accounted 
for  by  the  former  representative.  Sloan 
7'.  Johnson,  14  Sm.  &  M.  47.  Assump- 
sit does  not  lie  against  an  administrator 
dc  bonis  non,  in  his  representative  char- 
acter, to  recover  money  received  by  him 
from  his  predecessor,  arising  from  the 
sale  of  property  belonging  to  the  estate 
which  was  exempt  from  sale.  Ciodbold 
7'.  Roberts,  20  Ala.  354.  An  original 
18 


CHAP.  VI.] 


QUALIFIED    ADMINISTRATION. 


§  409 


ought  not  to  be  disregarded.  And  statutes  are  found  which  en- 
able him  to  procure  aid  in  his  search  from  the  probate  court.' 

Residuary  legatees  under  a  will  cannot  hold  the  administrator 
de  bonis  non  to  account  for  the  waste  or  wrongful  conversion  of 
the  estate  by  the  former  executor.- 

An  administrator  de  bonis  iion  has  the  power,  and  is  subject 
to  the  responsibilities,  of  an  original  representative,  with  respect 
to  the  estate  left  unadministered  by  his  predecessor.  He  may 
sue  on  promises  made  to  a  predecessor  in  his  representative  ca- 
pacity.^  The  final  settling  up  of  the  estate  devolves  upon  him  ; 
and  if  the  predecessor  be  dead,  the  latter's  representative  should 
do  nothing  more  than  close  his  dealings,  and  deliver  over  such 
assets  as  may  still  be  undisposed  of,  and  the  balance  remaining 
on  a  just  accounting,  to  the  administrator  de  bonis  non^  It  is 
the  duty,  moreover,  of  an  administrator  de  bonis  non  to  assume 
the  defence  of  an  action  brought  against  his  predecessor  on  a 


judgment,  not  recovered  by  the  prede- 
cessor in  his  representative  character, 
the  administrator  de  bonis  non  cannot 
sue  upon  nor  treat  as  assets.  Alexander 
V.  Raney,  8  Ark.  324.  As  to  recovering 
a  debt  which  was  due  from  the  original 
representative  to  the  original  decedent, 
see  Kelsey  v.  Smith,  2  Miss.  68.  At 
common  law  an  administrator  de  bonis 
non  could  not  have  a  scire  facias  upon 
a  judgment  obtained  by  the  original 
executor  or  administrator.  Stat.  17  Car. 
II.  c.  8,  §  2,  removes  this  disability  in 
modern  English  practice ;  Wms.  Exrs. 
898,  920 ;  and  it  does  not  generally  ob- 
tain in  the  United  States. 

The  administrator  de  bonis  noji  should 
not  institute  proceedings  against  widow 
and  heirs  of  a  deceased  predecessor,  but 
against  the  predecessor's  personal  rep- 
resentative. Finn  v.  Hempstead,  24 
Ark.  III.  A  suit  in  equity  brought  by 
a  predecessor  deceased  may  be  revived 
by  him.  Fletchers.  Weir,  7  Dana,  345  ; 
Owen  V.  Curzon,  2  Vern.  237  ;  Wms. 
Exrs.  920.  See  2  De  G.  M.  &  G.  i. 
As  for  proceedings  to  compel  his  prede- 

5 


cessor  to  return  an  inventory,  see  Gas- 
kins  z'.  Hammett,  32  Miss.  103. 

An  administrator  de  bonis  7ion  who 
sues  on  his  predecessor's  bond  must 
allege  the  facts  authorizing  him  to  do 
so.  Waterman  v.  Dockray,  78  Me.  1 39 ; 
And  see  Slagle  v.  Entrekin,  44  Ohio  St. 
637.  As  to  his  proceeding  against  for- 
mer bondsmen,  see  123  Cal.  437. 

'  Perrin  v.  Judge,  49  Mich.  342. 

^  Bliss  V.  Seaman,  165  111.  422  ;  United 
States  V.  Waller,  109  U.  S.  258. 

3  Catherwood  v.  Chabaud,  i  B.  &  C. 
1 50;  Wms.  Exrs.  961;  Shackelford  z/. 
Runyan,  7  Humph.  141  ;  Stair  v.  York 
Nat.  Bank,  55  Penn.  St.  364. 

■*  Ferebee  v.  Baxter,  12  Ired.  64; 
Ray  V.  Doughty,  4  Blackf.  115;  Steen  v. 
Steen,  25  Miss.  513.  As  to  the  equity 
rule  requiring  the  representative  of  a 
deceased  executor  to  pay  legacies  out  of 
funds  in  his  hands,  see  Tucker  v. 
Green,  5  N.  J.  Eq.  380 ;  Moore  v.  Smith, 
5  N.  J.  Eq.  649  ;  Goodyear  v.  Blood- 
good,  I  Barb.  Ch.  617;  Saunders  v. 
GatHn,  i  Dev.  &  B.  Eq.  86. 


19 


§   4IO  EXECUTORS    AND    ADMINISTRATORS.  [PART   IV. 

contract  of  the  deceased.'  He  may  bring  a  writ  of  error  on  a 
judgment  against  his  predecessor.-  He  may  institute  chancery 
proceedings  for  foreclosure  of  a  mortgage  given  to  the  deceased.' 
For  he  is  successor  to  all  the  legal  rights  and  duties  which 
vested  in  his  predecessor  as  representative  of  the  estate,  so  far 
as  may  be,  for  procuring  assets  of  the  estate  as  a  result.'' 

Upon  the  death  of  a  plaintiff  suing  as  executor  or  administra- 
tor, a  revivor  should  be  in  the  name  of  the  administrator  de 
bonis  non  and  not  of  the  plaintiff's  own  personal  representative.5 
And,  in  general  an  action  brought  to  recover  assets  by  a  general 
executor  or  administrator,  who  afterwards  dies,  resigns,  or  is  re- 
moved, may  be  revived  in  the  name  of  his  successor.''  Where 
a  representative  dies  before  settling  the  estate,  the  administrator 
dc  bonis  non  is  the  proper  party  plaintiff  or  defendant  in  an  ac- 
tion which  would  otherwise  be  brought  by  or  against  the  prede- 
cessor.7 

§  410.  The  same  Subject;  Relation  of  Administrator  de  bonis 
non  to  his  Predecessor's  Contracts,  etc.  —  An  administrator  de 
bonis  non  cannot  bring  suit,  as  it  is  held,  for  the  price  of  goods 
of  his  decedent  sold  by  a  predecessor  in  office ;  ^  since  this  con- 
stitutes rather  a  claim  upon  such  predecessor  in  connection  with 
striking  the  balance  upon  his  probate  accounts.  For  loss  or  in- 
jury, moreover,  arising  out  of  an  agreement  made  by  his  prede- 
cessor in  the  line  of  duty,  the  remedy,  if  any,  is  against  the 
predecessor  or  his  representatives.'^  But,  if  the  holder  and  in 
possession,  an  administrator  de  bonis  non  may  sue  in  his  own 
name,  as  such,  on  a  note  given  to  his  predecessor  as  administra- 

'  National    Bank    v.     Stanton,     116  '  Brasfield  z'.  Cardwell,  7  Lea,  252. 

Mass.  438.  *  Russell  v.  Erwin,  41  Ala.  292  ;  State 

^  Dale   V.    Roosevelt,    8    Cow.     t^t^t^.  f  Murray,  8  Ark.  199. 

And  see  Graves  z'.  Flowers,  51  Ala.  402.  ^  North      Carolina      University     ?■. 

'  So,  where  the  mortgagor  was  the  Hughes,  90  N.  C.  537. 

predecessor.     Miller  v.   Donaldson,   17  *  Calder   7'.    Pyfer,   2  Cranch,  C.   C. 

Ohio,  264.     And  see  Brooks  v.  Smyser,  430 ;  Slaughter  v.  Froman,  5  T.  B.  Mon. 

48  Penn.  St.  86.  19.     And  see  Alexander  v.   Raney,   S 

^  McGuinness  v.    Whalen,    17    R.    I.  Ark.  324146  Ark.  453.     But  see  same 

619.     The  distributee  of  the  estate  has  section, /^i-/. 

not  this  right.     104  N.  C.  180.  ''  Hagthorp  v.  Neale,  7  Cill  &  J.  13. 

520 


CHAP.   VI.]  QIJAI.IFIED    ADMINISTRATION.  §   4IO 

tor  or  executor.'  And  where,  in  connection  with  a  contract 
made  on  behalf  of  the  estate,  the  predecessor  takes  properly  a 
bond  for  security,  the  administrator  de  bonis  noii  may  sue  for  a 
breach  of  the  bond.'  In  assumpsit  brought  by  the  administra- 
tor be  bonis  non,  the  promise  may  be  alleged  as  having  been 
made  to  the  former  executor  or  administrator.^  We  have  just 
seen  that  he  may  re-open  the  fraudulent  transactions  of  his 
predecessor  and  get  back  assets  which  were  transferred  in  breach 
of  the  trust. •• 

But  the  administrator  de  bonis  nan  cannot  re-open  the  trans- 
actions which  his  predecessor  has  completed  in  fulfilment  of  his 
just  authority.  While  he  does  not  represent  his  predecessor  in 
the  same  sense  as  his  predecessor  represented  the  decedent,  he 
is  bound  by  his  predecessor's  acts  so  far  as  they  were  legal  and 
valid  and  performed  in  good  faith  ;  while,  according  to  the 
sounder  reason,  he  is  bound  no  further.^  He  cannot  disturb  the 
title  of  a  purchaser  acquired  under  an  agreement  with  his  pred- 
ecessor in  office,  which  the  latter  was  competent  to  make ; 
and,  while  in  many  respects  there  is  no  privity  between  the 
original  representative  and  an  administrator  de  bonis  7ion,  the 
acts  and  admissions  of  the  former  within  the  .sphere  of  his  proper 
functions  are  obligatory  upon  the  latter  and  upon  the  estate.'' 
And,  upon  the  ground  of  privity,  the  successor  may  be  com- 
pelled to  fulfil  his  predecessor's  agreement  for  a  reasonable  and 
bojta  fide  sale  of  chattels  ;  ^  as,  likewise,  he  may  sue  in  respect 
of  promises  and  contracts  made  to  his  predecessor  as  a  repre- 
sentative, where  the  proceeds  will  be  assets.*^ 

'Barron   v.    Vandvert,   13  Ala.  232;  O'Neall  7'.  Abney,  2    Bailey,  317;  Mar- 

Burrus  v.  Boulbac,  2  Bush,  39 ;  supra,  tin  r'.  Ellerbe,  70  Ala.  326. 

§293.     Cf.  Brooks?:'.  Mastin,69  Mo.  58.  f"  Duncan  v.  Watson,  28  Miss.    187; 

-  See  Matthews  v.  Meek,  23  Ohio  St.  Rice  (S.  C.)  Ch.  40.     The  estate  comes 

J72,  where  the  question  arose  in  con-  to  the  administrator  de  bonis  tion  sub. 

nection  with  executing  the  trusts  under  ject  to  a  sort  of  lien  in  favor  of  the  pred- 

a  will.  ecessor  to  this   extent,    and   operative 

^  Hirst  V.  Smith,  7  T.  R.  182  ;  Wms.  for  his  indemnity  accordingly.     Sitpra, 

P2xrs.  917  ;  SulHvan  7'.  Holker,  15  Mass.  §260.     And  see  Teague  v.   Dendy,   2 

374-  McCord  Ch.  207. 

■•  Supra,  §  409.  'Hirst  v.  Smith,  7  T.  R.  182. 

5  Forniquet  z'.  Forstall,  34  Miss.  87;  ^  Moseley  z/.  Rendell,  L.  K.  (>  <J.  H. 
Cochran  v.   Thompson,    18   Tex.  652; 

521 


§  4IO  EXECUTORS    AND    ADMINISTRATORS.  [PART  IV. 

Upon  the  general  principles  of  equity,  it  is  held  that  an  ad- 
ministrator dc  bonis  noii  will  not  be  permitted  to  repudiate  a  just 
contract  of  his  predecessor  without  compensating  the  party  in- 
jured for  all  loss  induced  by  the  contract.'  And,  following  the 
usual  rule  of  administration,  such  administrator  cannot  himself 
contract  a  debt  so  as  to  bind  directly  his  decedent's  estate.- 

How  far,  too,  the  administrator  dc  bonis  7ion  may  pursue  as- 
sets not  specifically  identified  as  belonging  to  the  estate,  is  still 
a  matter  of  question,  except  in  States  whose  legislation  has  de- 
fined liberally  the  powers  of  an  administrator  dc  bonis  non. 
Under  his  commission,  such  an  official  was  rather  circumscribed 
according  to  the  earlier  precedents.  And  while  equity  exercises 
a  broad  authority  in  modern  times  for  tracing  out  trust  funds, 
and,  notwithstanding  the  want  of  ear-marks,  devoting  them  to 
the  practical  purposes  of  the  trust  to  which  they  fairly  belonged, 
a  suit  instituted  at  common  law  pursues  a  narrower  line.  Not 
only  the  conversion  of  funds  by  the  predecessor  may  obstruct 
his  successor,  but  the  strict  legal  doctrine  appears  to  be,  that 
whenever  the  property  in  any  of  the  assets  of  the  deceased  has 
been  so  changed  as  to  vest  in  the  predecessor,  in  his  individual 
capacity,  the  legal  title  thereto  will  devolve  upon  his  own  ex- 
ecutor or  administrator  at  his  death,  and  not  uj^on  the  adminis- 
trator dc  bonis  non ;  '  or,  supposing  the  predecessor  to  have 
resigned  or  been  removed,  he  continues  the  legal  owner  until 
equity  interposes  to  decree  the  title  differently.  It  is  not  just 
to  maintain  individual  ownership  by  the  personal  representative 
in  all  cases,  nor,  especially,  to  allow  deposits  and  securities  stand- 
ing in  the  name  of  the  trust  to  be  put  to  l^aying  his  individual 
creditors ;  and  any  such  conclusion  our  modern  courts  of  pro- 
bate and  equity,  and  the  legislature  besides,  will  be  found  to 
resist.''     Much  of  the  legal  inconsistency  to  which  modern  pro- 

338;  commenting  upon  Bolingbroke  ?'.  Dutcher,  15    Mo.  89,  and  cases  cited; 

Kerr,  L.  R.  i  Ex.  222.  Nicolay  v.  Fritzchie,  40  Mo.  69.     That 

'  Cock  V.  Carson,  38  Tex.  284  ;  supra,  equity  inclines  differently,  see  2  Freem. 

§  360.  1 39  ;  Skeffington  v.  Budd,  3  Y.  &  Coll. 

^McBeth  V.   Smith,  i    Const.  (S.  C.)  i  ;  9  CI.  &  Fin.  220,  opinions  by  Lords 

676.  Cottenham  and  others. 

'  Drue   V.    I5aylie,    i    Freem.   462 ;  3  ■•  See  Stair  v.    York   Nat.    Bank,   55 

Keb.  298;  Wms.  Exrs.  918;  Harney  ?'.  Penn.  St.   364;  King  ?-.  Green,  2  Stew. 

522 


CHAP.   VI.]  QUALIFIED    ADMINISTRATION.  §  4I  I 

bate  law  is  exposed  arises,  doubtless,  from  the  doctrine  of  modern 
development  which  charges  the  personal  representative  individ- 
ually and  immediately  with  his  own  contract  on  behalf  of  the 
estate,  instead  of  the  estate  itself  ;  the  rigid  consequence  proving 
sometimes  beneficial  to  the  estate  and  sometimes  disastrous. 
For,  wherever  the  administrator  dc  bonis  non  seeks  to  recover 
at  law,  as  assets  of  the  estate,  a  debt  founded  upon  a  legal  and 
individual  privity  between  the  debtor  and  his  predecessor,  he  is 
obstructed  in  his  common-law  remedies.' 

§411.  Suit  on  Negotiable  Instrument  as  concerns  Administra- 
tion de  Bonis  non. —  A  note  payable  to  A.  B.,  e.xecutor  (or  ad- 
ministrator) of  C.  D.,  is  said  to  be  payable  to  A.  B.  personally, 
the  words  "  executor,"  etc.,  being  merely  descriptive.  On  the 
death  of  A.  B.,  therefore,  the  suit  is  properly  revived  in  the 
name  of  his  personal  representative  ;  at  all  events,  if  he  holds 
possession,  and  if  there  be  no  averment  of  assets.^  But  this  rule 
should  not  interfere  with  the  right  of  an  administrator  de  bonis 
non  to  receive  possession  of  the  unadministered  assets  of  the  es- 
tate he  represents;  and,  accordingly,  such  administrator  is  held 
capable  of  suing,  as  such,  upon  notes  or  other  evidences  of  debt 
payable  in  terms  to  his  predecessor  in  the  administration,  as  ex- 
ecutor or  administrator,  provided  he  make  proper  averment  as 

133;  Stevens  v.  Goodell,  3  Met.  343.  had  been  paid  in  full  what  was  due  the 
And  see  §330;  gS  N.  Y.  511.  estate,  and  had  re-deposited  with  the 
'  In  Brooks  v.  Mastin,  69  Mo.  58,  a  defendant  part  of  the  money,  the  de- 
recent  case,  an  administrator  de  bonis  fendant  would  be  legally  liable  to  the 
non  undertook  to  sue  upon  a  debt  orig-  predecessor,  and  the  predecessor  liable 
inally  owing  the  decedent,  for  which  over  to  the  plaintiff,  but  that  there  would 
the  defendant  had  delivered  his  own  be  no  liability  as  between  the  defend- 
promissory  note  in  favor  of  the  prede-  ant  and  the  plaintiff, 
cessors  "  as  administrators ; "  but  he  It  is  held  that  an  administrator  Je 
could  not  produce  the  note.  It  was  bonis  non  is  not  entitled  to  the  posses- 
held  that  the  plaintiff  could  not  recover  sion  of  a  note  given  to  the  former  rep- 
on  the  note  without  showing  that  it  had  resentative  as  such.  Miller  z'.  Ale.xander, 
come  into  his  possession  ;  nor  on  the  i  Hill  Ch.  (S.  C.)  25. 
original  consideration,  without  either  ^  Cravens  z'.  Logan,  7  Ark.  103;  Cook 
showing  that  the  note  had  not  been  v.  Holmes,  29  Mo.  61  ;  Arrington  v. 
paid  to  the  lawful  holder,  or  else  sur-  Hair,  19  Ala.  243.  See  supra,  §  293,  as 
lendering  it  for  cancellation.  And  it  to  an  original  representative's  right  to 
was  further  held  that  where  a  transac-  sue  upon  such  an  instrument, 
tion  was  the  same  as  if  his  predecessor 


v^4I2  KXECUTOKS    AXO    ADM  IMS  TK  ATORS.  [rXKIlV. 

to  the  facts,  and  produce  or  account  for  the  instrument."  Where, 
by  general  indorsement  and  delivery,  or  otherwise,  the  note  be- 
came assets  payable  to  bearer,  the  administrator  dc  bonis  noii  is 
permitted  to  sue  as  holder.-  Where,  howexer,  the  note  belong- 
ing to  the  estate  was  taken  in  the  individual  name  of  the  former 
executor  or  administrator^  or,  for  other  cause,  the  administrator 
dc  bonis  non  cannot  produce  the  instrument  as  bearer  and  aver 
title,  an  action  at  law  apparently  cannot  be  maintained  ;  for  the 
legal  title  vests  rather  in  his  predecessor's  personal  representa- 
tive, on  his  death.  Yet  here,  on  the  ground  that  the  adminis- 
trator de  bonis  non  is  entitled  to  the  equitable  control  of  the  debt 
and  its  collection,  he  may  rightfully  prosecute  his  suit  in  equity. ^ 

§  412.  Administrator  de  Bonis  non  bound  to  observe  Good 
Faith  and  Prudence,  like  Other  Administrators.  —  The  adminis- 
trator dc  bonis  non  is  boimd  to  observe  good  faith,  and  to  con- 
form to  the  usual  standard  of  diligence  and  care,  as  regards 
collecting,  procuring,  and  distributing  the  assets  not  already  ad- 
ministered ;  but  he  is  no  more  an  insurer  of  the  estate  than  a 
general  representative.-*  If  he  faithfully  performs  his  own  trust 
he  cannot  be  made  to  suffer  loss  by  reason  of  any  predecessor's 
default ;  nor  is  he  chargeable  for  property  which,  notwithstand- 
ing such  faithful  performance,  fails  to  come  into  his  hands.5  The 
revival  of  a  judgment  rendered  against  the  former  representative 
may  be  made  to  reach  assets  in  the  hands  of  the  successor  ;  but 

'  Catherwood  v.  Chabaud,  i   B.  &  C.  aheady  stated  in  the  text.      And  .see 
150;  Barron  v.  Vandvert,  13  Ala.  232.  Saffold  v.  Banks,  69  Ga.  2S9. 
It  does  not  follow  that  because  the  ad-  ^  Burrus  7-.  Roulhac,  2  Bush,  39. 
ministrator  de  boms   iion   may  sue,  the  *  Supi'ii,   §  315;   Wilkinson  v.    Hun- 
representative  of  the  original  executor  ter,  37   Ala.  268 ;  Eubank  v.   Clark,  78 
or  administrator  may  not  sue.     By  Lx)rd  Ala.  73. 

Tenterden,  in  Catherwood  t/.  Chabaud,  '  Smithers  v.    Hooper,  23  Md.  273; 

supra;  Wms.  Exr.s.  920.  Reyburn-'.  Ruggles,  23  Mo.  339;  Weeks 

^  Catherwood  v.  Chabaud,  i  B.  &  C.  v.  Love,  19  Ala.  25.  A  decree  directing 
1 50.  Here  the  suit  was  permitted  to  property,  in  the  hands  of  an  adminis- 
be  brought  by  .such  administrator  in  trator  ^/t'/ww/j  «(7«,  to  betaken  to  satisfy 
his  representative  capacity.  That  the  a  defalcation  of  a  preceding  adminis- 
bearer  may  sue  in  his  own  name,  by  trator,  is  erroneous.  Anderson  v.  Mil- 
virtue  of  rightful  possession,  we  have  ler,  6  J.  J.  Marsh.  568. 

524 


CHAP.   VI.]  QUALIFIED    ADMINISTRATION.  §   413 

it  cannot  be  made  the  foundation  of  a  suit  against  the  latter  and 
his  sureties  as  for  the  successor's  waste.' 


§  413.  Administrator  de  Bonis  non  with  Will  annexed. — 
Powers  and  duties  vested  in  the  executor,  as  such,  and  not  per- 
sonally, generally  devolve  u})on  an  administrator  dc  botiis  non 
with  the  will  annexed,^  as  well  as  upon  an  administrator  with 
the  will  annexed.' 

If  the  predecessor  resigns  or  is  removed  from  office  before 
the  final  settlement  of  the  estate,  and  an  administrator  dc  bonis 
non  with  the  will  annexed  is  appointed  in  his  place,  the  latter 
becomes,  immediately  upon  receiving  his  credentials,  the  sole 
representative  of  the  estate  of  the  deceased,  and  is  entitled  to 
all  the  assets  then  in  the  hands  of  the  former,  belonging  to  the 
estate  ;  and  this,  notwithstanding  the  time  of  paying  moneys  to 
the  persons  ultimately  entitled  to  receive  them  has  not  yet  ar- 
rived."* But  he  does  not  succeed  to  powers  and  duties  which  lie 
outside  the  ordinary  scope  of  an  executor's  functions,  or  such  as 
are  discretionary,  unless  the  testator  has  clearly  granted  com- 
mensurate authority. 5 

'  Ruff  V.  Smith,  31  Miss.  59.  Brand,  13  Bush,  77  ;  Vardeman  j'.  Ross, 

In  some  States,  under  the  local  code,  36  Tex.   in  ;  supra,  §  128;  Rubottom 

an  administrator  de  bonis  non  must   ad-  v.  Morrow,  24  Ind.  202;  Ingle  v.  Jones, 

vertise  and  hold  himself  liable  for  the  9  Wallace,  486.     That  an  administrator 

presentment  of  claims  somewhat  as  an  de  bonis  non  with  will  annexed  has  no 

original  administrator.     But,  subject  to  concern  with  property  to  whose  use  a 

such  provisions,  if  the  debts  have  all  legatee  for  life  or  next  of  kin  is  already 

been  paid,  the  administrator  should  be  specifically  entitled,  if  entitled  under  the 

held  to  an  expeditious  distribution  and  will,  see  Place,  Re,   i    Redf.  Sur.  276; 

•vvinding  up  of  the  estate.     See  Alexan-  Brownlee  v.   Lockwood,   20  N.  J.  Eq. 

der  z'.  Stewart,  8  Gill  &  J.  226  ;  Cover  239.     And  so,  conversely,  a  direction  to 

V.  Cover,  16  Md.  i.  executors  as  executors,  and  not  upon  a 

^  Blake  v.  Dexter,  12  Cush.  559.  personal   confidence,  may  be  executed 

^  See  §  407.  by  such  fiduciary.     King  v.  Talbert,  36 

<  Pinney  v.  Barnes,  17  Conn.  420.  Miss.  367  ;  Olwine's  Appeal,  4  W.  &  S. 

'  An  administrator  de  bonis  non  with  492.      And  see  Mathews  v.  Meek,  23 

the  will  annexed  is  under  the  same  pre-  Ohio  St.  272  ;  Triggs  v.  Daniel,  2  Bibb, 

sumed  disability  as  an  administrator  with  301;  Newsom  z/.  Newsom,  3  Ired.  Eq. 

the  will  annexed,  as  concerns  the  execu-  411.     Equity  must  sanction  the  power 

tion  of  a  personal  trust.     Supra,  §  407  ;  in  case  of  doubt.     63  Md.  542. 

Knight  V.  Loomis,  30  Me.  204 ;  Ross  v.  Where  the  will  confers  a  power  of 

Barclay,  18  Penn.  St.   179;   Warfield  z'.  sale  of  property  upon  anyone  legally 


§415  KXECUTORS    AND    ADMINISTRATORS.  [P ART  IV, 

§  414.  Rights,  Duties,  and  Liabilities  of  Temporary  and  Special 
Administrators,  etc.  —  FourtJily,  as  to  temporary  and  special  ad- 
ministrators, what  has  already  been  said  in  connection  with  their 
appointment  may  sufficiently  indicate  the  scope  of  powers  and 
liabilities  pertaining  to  these  several  classes  of  trusts."  The 
general  executor  or  administrator,  when  qualified,  succeeds  to 
the  rights  of  a  special  administrator ;  -  and,  if  the  latter  duly 
account,  and  turn  over  the  assets  or  their  proceeds  to  him,  hav- 
ing conducted  himself  with  reasonable  discretion  and  honesty, 
the  courts  do  not  appear  inclined  to  permit  third  parties,  and 
those  who  dealt  with  such  temporary  official,  to  take  advantage 
of  acts  committed  by  him  in  excess  of  his  authority.^ 

§  415.  Validity  of  Qualified  Representative's  Acts  does  not  de- 
pend upon  his  Own  Designation  of  the  Office.  —  We  may  add, 
that,  in  general,  the  validity  of  a  personal  representative's  acts 
depends  on  whether  they  were  within  the  scope  of  his  authority 
as  granted  ;  not  on  whether  he  designated  himself  by  one  title 
or  another.'*  And  this  is  a  principle  available  for  absolving  sure- 
ties on  the  representative's  official  bond,  where  the  latter  takes 

qualified  to  administer  the  estate,  this  204.     Nor  can  he  make  even  a  partial 

administrator  may  exercise  it.     Rolhns  distribution.     106  Cal.  427. 
V.  Rice,  59  N.  H.  493 ;  Cohea  v.  John-         Missouri  statute  as  to  such  adminis- 

son,  69  Miss.  46.     And  see  §  407.     Cf.  trators  not  unconstitutional.     Ro  Bards 

Frisby  V.  Withers,  61  Tex.  134.  v.  Lamb,  127  U.  S.  802;  §  135. 

'  Supra,  §§  132-135.  '•  Thus,  it  does  not  affect  the  case 
^  Cowles  7J.  Hayes,  71  N.  C.  231.  that  one  who  was  only  a  curator  or 
^  See  Von  Schmidt  v.  Bourn,  50  Cal.  special  administrator,  styled  himself  as 
616;  supra,  §  190.  A  special  adminis-  a  general  administrator.  Morgan  v. 
trator  under  the  New  York  code  may  Locke,  28  La.  Ann.  806. 
receive  permission  to  pay  a  debt  if  the  Where  a  public  administrator  receives 
surrogate  is  satisfied  of  the  propriety,  letters  of  administration  on  the  estate 
3  Uem.  285.  But  not  those  of  one  side  of  one  who  left  relatives  in  the  country, 
in  the  litigation  which  gave  rise  to  his  he  acts  not  as  public  administrator,  but 
appointment.  2  Dem.  264.  He  may  as  general  administrator.  2  Uem.  650. 
maintain  a  bill  in  equity  to  redeem  from  A  pubUc  administrator  cannot  take 
a  mortgage  where  the  decedent's  right  charge  of  an  estate  on  the  allegation  of 
to  redeem  might  be  barred  before  a  fraudulent  conversion  by  a  foreign  ad- 
general  administrator  could  be  qualified,  ministrator;  but  it  is  the  creditors  and 
Libley  v.  Cobb,  76  Me.  781.  But  he  distributees  who  should  proceed.  Mc- 
cannot  mortgage  real  estate  of  the  de-  Cabez'.  Lewi.s,  76  Mo.  296.  As  to  suing 
cedent.     Duryea  z/.  Mackey,  151   N.  V.  a   predecessor,   see   State  v.   King,   76 

Mo.  510. 
526 


CHAP.    VI.J  QUAI.IIIKI)    ADMINISTRATION.  §  4^6 

a  fund  to  which  he  was  not   legally  entitled  in  his  qualified  offi- 
cial character.' 

§  416.  Negligence,  etc.,  by  Various  Representatives  in  Succes- 
sion.—  A  bill  in  equity,  which  includes  several  successive  ad- 
ministrators, is  not  multifarious,  in  a  suit  to  settle  an  estate.-^ 
There  may  be  culpable  negligence  or  misconduct  as  to  assets, 
so  as  to  charge  various  representatives  in  succession.^ 

'  Warfield  t-.  Brand,  13  Bush,  77.  administrator  of  a  surety  upon  his  pred- 

^  Johnson  v.  Molsbee,  5  Lea,  445.  ecessor's  bond  may  be  reached  by  the 

^  For  the   rule  of  determining  their  suit  of  the  administrator  de  bonis  uon. 

respective  liabilities  in  such  cases,  see  State  v.  Porter,  9  Ind.  342. 

Lacy  V.   Stamper,   27    Gratt.  42.     The 


PART  V. 

PAYMENTS  AND  DISTRIBUTION. 


CHAPTER  I. 

DEBTS  AND  CLAIMS  UPON'  THE  ESTATE. 

§  4 1 7.  Executor  or  Administrator  is  bound  to  pay  Debts, 
Claims,  etc.  —  So  far  as  assets  may  have  reached  his  hands  in 
due  course,  every  executor  or  administrator  is  bound  to  admin- 
ister the  estate  according  to  law,  by  paying  the  debts,  claims, 
and  charges  upon  it,  in  legal  order  of  jireference,  before  making 
any  distribution.  This  duty  is  enjoined  upon  him  by  law,  by  his 
oath  and  bond,  and  by  a  sound  public  policy,  which  treats  a 
decedent's  estate  as  a  fund,  subject  to  all  lawful  debts  and 
demands,  and  to  all  reasonable  charges  incurred  by  reason  of  his 
death.  Legatees  and  distributees,  as  a  rule,  are  postponed  to 
all  such  claimants  ;  their  satisfaction  being  out  of  the  surplus,  if 
any,  which  remains  ;  which  surplus,  rather  than  the  gross  assets, 
represents  the  true  fortune  left  by  the  deceased  person  ;  though, 
as  we  shall  see,  priorities  exist  even  as  among  legatees." 

Although  this  winding  up  of  a  deceased  person's  affairs  cor- 
responds considerably  to  the  striking  of  a  balance,  such  as  one 
might  have  made  with  his  creditors,  were  he  alive,  there  are 
essential  points  of  difference  :  thus,  statutes  place  special  limita- 
tions to  the  presentation  of  claims  against  the  estate  of  a  deceased 
person ;  charges,  such  as  those  of  funeral  and  adm'inistration, 
and  widow's  allowances,  are  here  regarded,  in  addition  to  what 
were  strictly  debts  owing  by  the  deceased  ;  assets  are  marshalled, 

'  McNair's    Appeal,    4    Rawle,    148;     Bank  7a  McDonough,  7  La.  Ann.   232; 
Mclnto.sh  7'.    Mumbleton,    35  Ga.  95;     Ilamlin  ?'.  Mansf:dd,  88  Me.  131. 
Dean  v.    I'ortis,    11    Ala.    104;   Union 

528 


CHAP.  I.]    DEBTS  AND  CLAIMS  UPON  THE  ESTATE.       §  41 8 

moreover,  and  preferences  accorded  among  debts  and  charges 
upon  the  decedent's  estate,  after  a  method  peculiar  to  admin- 
istration. All  these  points  of  difference  will  appear  in  the  course 
of  the  present  chapter. 

But  the  paramount  authority  of  a  statute  which  establishes  an 
equality  among  seasonable  creditors  of  the  same  degree  must  be 
respected.  No  testator  can  so  discriminate  of  choice  among  his 
creditors  as  to  change  the  legal  rules  of  priority  among  them  in 
the  settlement  of  his  estate ;  he  cannot  postpone  the  debt  of 
higher  rank  to  that  of  a  lower,  nor  create  a  preference  among 
debts  of  equal  degree.'  Nor  has  the  probate  court  any  inherent 
authority  to  vary  the  legal  rules  of  priority.-  So,  too,  the  usual 
consequences  of  delay  and  ladies  on  the  creditor's  part,  in  omit- 
ting timely  presentment  and  prosecution  of  his  demand,  cannot 
be  averted  by  general  directions  in  a  will,  or  the  order  of  a  pro- 
bate court ;  3  though  local  codes  afford  equitable  relief  to  the 
tardy  creditor  under  proper  circumstances,'*  and,  saving  the 
priority  of  seasonable  creditors,  even  a  testator  might  put  his 
creditor  on  the  footing  of  a  specific  legatee  by  apt  language  in 
his  will.s 

§  418.  Notice  of  Appointment;  Presentation  of  Claims;  Stat- 
utes of  Special  Limitations.  —  Statutes  in  various  American  States 
now  provide  that  executors  and  administrators  shall  presently 
give  public  notice  of  their  appointment,  by  advertisement  or 
otherwise,  within  a  fi.xed  time."  The  main  object  of  such  legisla- 
tion is  to  facilitate  the  speedy  settlement  of  each  deceased  per- 
son's estate,  by  raising  a  special  legal  barrier  to  claims  and  limit- 
ing the  opportunity  of  creditors  to  share  in  its  assets  which  have 
been  discovered  and  brought  together ;  _^  for  where  the  public 

'Turner  z/.  Cox,  8  Moore,  P.  C.  288;  50;    Burroughs   v.    McLain,    37    Iowa, 

Moore  z/.  Ryers,  65   N.  C.  240;  Mason  189;  Miller  v.  Harrison,  34  N.  J.  Eq. 

7'.  Man,  3  Desau.  16;  People  w.  Phelps,  374;  Winegar   v.    Newland,    44    Mich. 

78  111.  147.  367  ;  Greaves,  Re,  18  Ch.  D.  551. 

-Tompkins  v.  Weeks,  26  Cal.  50;  '  The  general  rule  appears  to  be  that 
Jenkins  I/.  Jenkins,  63  Ind.  120;  Thomp-  only  claims  that  might  have  been  re- 
son  V.  Taylor,  71  N.  Y.  217.  covered  from  the  decedent  himself  can 

^  Collamore   v.   Wilder,  9    Kan.    67  ;  be  recovered  from  the  estate.     66  Vt. 

57  Iowa,  353;  72  Ind.  120.  507. 

^See  Baldwin  v.  Dougherty,  39  Iowa,  ''  Su/^rd.  §§  3S9-391. 

34  529 


§4i8 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


notice  has  been  duly  given,  the  executor  or  administrator,  as 
such  statutes  declare  explicitly,  cannot  be  held  to  answer  to 
the  suit  of  any  creditor  of  the  deceased  after  a  specified  brief 
period,  save  so  far  as  new  assets  may  afterward  have  come  to 
hand.'  In  this  manner  claimants  are  compelled,  regardless  of 
the  usual  rules  of  limitation,  to  present  their  claims  upon  the 
estate  within  six  months,  one  year,  or  two  or  more  years,  accord- 
ing as  the  local  act  may  prescribe,  or  else  be  barred.^ 

Statutes  of  this  character  may  expressly  or  by  inference  re- 
quire the  presentation  of  demands  against  the  estate  within  the 


'  For  the  computation  of  time  in 
such  cases,  see  the  language  of  the 
local  statute.  Wooden  v.  Cowles,  1 1 
Conn.  292 ;  Henderson  v.  Ilsley,  i  Sm. 
&  M.  9.  In  Massachusetts,  public  notice 
is  to  be  given  within  three  months  from 
the  appointment,  and  the  barrier  is  thus 
raised  in  two  years.  Affidavit  of  notice 
is  to  be  filed  in  the  probate  registry,  as 
the  Massachusetts  statute  provides ;  but 
the  fact  of  due  notice  may  be  proved  by 
oral  evidence  as  well.  Henry  v.  Estey, 
13  Gray,  336.  The  statute  provides  for 
giving  the  notice  afterwards,  on  order 
of  the  court,  where  by  accident  or  mis- 
take the  executor  or  administrator  failed 
to  do  so  in  regular  course ;  in  which  case 
the  hmitation  runs  from  the  time  of  such 
order.  Mass.  Gen.  Stats,  c.  97,  §§  3,  4. 
See  also  Hawkins--.  Ridenhour,  13  Mo. 
125;  Dolbeer  v.  Casey,  19  Barb.  149; 
Lee  7/.  Patrick,  9  Ired.  L.  135.  In  dif- 
ferent States  the  period  of  limitations 
will  be  found  to  vary.  The  form  of  such 
notices  is  usually  fixed  by  statute  and 
standing  rules  of  the  probate  court ;  the 
fact  of  one's  appointment  being  stated, 
with  a  demand  upon  all  persons  indebted 
to  make  payment,  and  all  persons  hav- 
ing claims  to  present  them.  Gilbert  v. 
Little,  2  Ohio  St.  156.  The  precise 
time  within  which  claims  should  be  pre- 
sented need  not  be  explicitly  stated, 
lb.;  May  v.  Vann,  15  Fla.  553. 

^  Hawkins  7'.  Ridenhour,  13  Mo.  125  ; 
C  Gill,  430  ;   Mass.  Gen.  Slats.  697,  §§  i, 

5 


2;  9  Ired.  L.  135;  44  Conn.  450.  In 
some  States  the  statute  requirement  is 
pronounced  directory  merely.  Hooper 
V.  Bryant,  3  Yerg.  i. 

Special  administrators,  with  functions 
limited  to  collection,  etc.,  are  not  liable 
to  actions,  and  hence  need  not  give 
notice.  Erwin  v.  Branch  Bank,  14  Ala. 
307.  But  provision  is  made  that  an  ad- 
ministrator de  bonis  non  shall  be  liable 
for  two  years  after  qualifying,  unless 
the  creditor's  action  was  barred  before 
the  previous  administration  terminated. 
Mass.  Gen.  Stats,  c.  97,  §§  12,  14. 

Provision  is  made  for  the  case  of  a 
creditor  of  the  deceased,  whose  right  of 
action  does  not  accrue  within  the  two 
years,  where  the  executor  or  administra- 
tor gives  statute  notice.  Mass.  Gen. 
Stats,  c.  97,  §  8  ;  Bacon  v.  Pomeroy,  104 
Mass.  577  ;  25  Minn.  22.  So  for  in- 
fants in  some  codes :  or  the  court  may 
extend  for  "good  cause."  Except  for 
such  saving  provisions,  an  executor  or 
administrator  who  has  given  his  notice 
becomes  absolved  from  liability  as  such 
at  the  expiration  of  the  statute  period. 
6  Cush.  235;  13  Gray,  559.  As  to  a 
creditor's  bill  in  equity  for  relief  in  such 
cases,  see  2  Allen,  445. 

That  there  are  no  claims  against  a 
decedent's  estate  cannot  be  judicially 
determined  before  the  expiration  of  the 
statute  period  locally  allowed  for  filing 
claims.     107  Iowa,  384. 


30 


CHAP.   I.]         DEBTS    AND    CLAIMS    UPON    THE    ESTATE. 


§418 


prescribed  period.  This  special  barrier  operates,  notwithstand- 
ing an  administrator's  absence  from  the  State  ; '  and  also  as 
against  non-resident  as  well  as  resident  claimants,-  for  the  policy 
is  to  benefit  the  estate  under  local  jurisdiction.  So,  too,  it  is 
held  that  an  administrator's  promise  to  pay  such  barred  claim 
will  not  make  the  claim  binding  upon  the  decedent's  estate,  nor 
take  it  out  of  the  statute.^  Nor  can  the  claimant  who  has  in- 
excusably neglected  to  pursue  his  claim  upon  the  estate,  so  as  to 
avoid  the  barrier,  sue  legatees,  heirs,  or  kindred  in  respect  of 
the  property  they  may  have  derived  through  the  decedent.''  In 
certain  States  the  exhibition  of  a  claim,  properly  authenticated, 
to  the  executor  or  administrator,  or  a  demand  upon  him,  arrests 
the  statute  of  non-claim  ;  ^  or,  the  local  code  contemplating  a 
presentment  of  all  claims  in  the  probate  court  for  classification 
and  allowance,  a  creditor  can  only  be  paid  out  of  assets  subse- 
quently discovered,  unless  he  duly  files  his  claim  against  original 
assets  within  the  period  fixed  by  the  statute.^  But,  gener- 
ally, the  same  statute  barrier  applies  as  to  the  time  for  present- 


'6  Ark.  14;  37  Tex.  34;  Lowe  -■. 
Jones,  15  Ala.  545. 

^Envin  v.  Turner,  6  Ark.  14;  10 1 
Wis.  494. 

^Branch  Bank  f.  Hawkin.s,  12  Ala. 
755;  25  Miss.  501.  The  executor  or 
administrator  is  bound  to  plead  such 
statute.     Supra,  §  389. 

*•  Cincinnati  R.  v.  Heaston,  43  Ind. 
177;  I  Bailey  Ch.  437;  12  Iowa,  52. 
Local  statutes  provide  for  admitting 
later  claims  which  had  been  deferred 
with  good  excuse.  Mass.  Gen.  Stats. 
c.  97 ;  22  Cal.  95.  Excuses  are  recog- 
nized in  some  other  instances.  North 
T'.  Walker,  66  Mo.  453;  Senat  v.  Find- 
ley,  51  Iowa,  20.  And  see  Sampson  v. 
Sampson,  63  Me.  328. 

=  2  Humph.  565;  11  Ala.  258;  7 
Fla.  301 ;  29  Ark.  238.  The  time  of 
subsequent  presentment  to  the  probate 
court  for  classification  is  not  necessarily 
limited.  lb.  An  actual  presentation 
of   the   claim  is  not  always   necessary ; 

53 


for,  if  within  the  prescribed  time  the 
administrator  or  executor  has  notice  or 
knowledge  of  it,  this  may  be  shown  to 
charge  him.  Ellis  v.  CarUsle,  8  Sm.  & 
M.  552 ;  Little  v.  Little,  36  N.  H.  224 ; 
2  Ind.  174;  10  Tex.  197  ;  9  How.  (N.  Y.) 
Pr.  350.  But  see  58  Ala.  25.  Notice 
to  an  administrator  of  the  presentment 
of  a  demand  at  the  county  court  may 
suffice.  24  Mo.  527.  See  also  Ham- 
mett  V.  Starkweather,  47  Conn.  439.  In 
New  York,  a  claim  duly  presented  to 
the  representative  and  not  objected  to 
nor  proposed  to  be  referred,  becomes  a 
liquidated  and  undisputed  claim,  and  on 
application  to  the  surrogate  to  direct 
payment  he  only  inquires  whether  there 
are  proper  assets  to  be  applied.  Lam- 
bert V.  Craft,  98  N.  Y.  342.  A  note 
not  yet  due  may  be  proved  against  the 
estate  of  an  indorsee  who  waived  pre- 
sentment and  notice.     122  111.  396. 

*  Russell   V.    Hubbard,    59    111.    335; 
42  Ind.  485  ;  58  Tenn.  170. 
I 


§   4^9  KXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

ing  or  suing  upon  a  demand  against  a  decedent's  estate."  And  a 
testator  by  creating  an  express  trust  in  his  will  for  his  creditors 
may  take  their  claims  out  of  the  operation  of  the  statute.^ 

§419.  The  same  Subject.  —  The  claims  and  demands,  whose 
suit  or  presentation  within  the  statute  period  are  thus  contem- 
plated, appear  in  general  to  be,  all  claims  that  could  be  asserted 
against  the  estate  in  a  court  of  law  or  equity,  existing  at  the 
time  of  the  death  of  the  deceased,  or  coming  into  existence  at 
any  time  after  his  death,  and  before  the  expiration  of  the  statute 
l^eriod,  including  claims  running  to  certain  maturity,  although 
not  yet  payable.-^  The  statute  barrier  has  been  maintained 
strenuously  against  common-law  actions  brought  against  the 
legal  representative,  which  were  founded  in  inchoate  and  contin- 
gent claims,  such  as  dormant  warranties  and  the  like,  but  have 
not  been  brought,  and  could  not  have  been,  within  the  statute 
period.''  Under  a  bill  of  equity  or  legislative  proviso,  such  cases 
of  hardship  are  sometimes,  however,  overcome.'  And  it  is  held 
that  these  inchoate  and  contingent  claims  may  be  enforced 
against  the  heir  or  distributee,  where  the  claimant  is  too  late  to 
make  the  executor  or  administrator  liable.^  One  who  seeks  to 
enforce  a  trust  against  specific  property  must  seek  relief  in  a  court 
of  equity,  and  can  hardly  be  called  a  creditor  within  the  mean- 
ing of  the  ])r()bate  law  ;7  nor  can  one  who  in  order  to  establish  a 

'Conies  7:   Wilkin,  21  N.  V.  428;  6  559;    104    Iowa,    264;    Pico   v.   De  la 

Cush.  235.     Opportunity  to  ve-open  the  Guerra,  18  Cal.  422.     An  infant's  claim 

period  is  sometimes  afforded  by  statute,  is  within  the  statute  barrier,  or  those  of 

32  Vt.  176.  others  under  legal  disability.     Williams 

Statutes  of    this    character    may  be  7.  Conrad,  1 1    Humph.  412. 

considered,  not  as  statutes   of    limita-  '  Gai-field  z>.  Bemis,  2  Allen,  445. 

tions,  but    rather  as  special  regulations  ^Walker   v.    Byers,     14     Ark.    246; 

of  probate  law  which  impose  the  loss  of  Mann--.    Everts,   64    Wis.    372.      See 

the  claim  if  the  party  fails  to  sue  on  it  Selover  v.  Coe,  63   N.    V.   438.      The 

within  the  time  prescribed.     Standifer?/.  Massachusetts     statute     provides     ex- 

Hubbard,  39  Tex.  417.     But  cf.  i  Ired.  pressly  for  suit  against  heirs  and  next  of 

Eq.  92.  kin,  or  devisees  and  legatees,  within  one 

==  Abbay  t.  Ilill,  64  Miss.  340.  year  after  the  cause  of  action  accrues. 

'  Walker  v.  Byers,    14   Ark.  246  ;  67  Mass.  Gen.  Stats,  c.  97. 

Cal.  637.  '  Gunter  z'.  Janes,  9  Cal.  643;  Van- 

■•  As  in  Holden  7'.   l'"lelcher,  6  Cush.  dever  v.  Freeman,  20  Tex.  333. 
235.     And  see  Bemis  f.  Bemis,  13  Gray, 


CHAP.  I.]    DEBTS  AND  CLAIMS  UPON  THE  ESTATE. 


§  419 


claim,  must  institute  in  equity  a  discovery  and  accounting.'  But 
a  debt  or  note  which  is  secured,  as,  for  instance,  by  mortgage, 
ought,  in  order  to  be  enforced  apart  from  such  security,  to  be 
thus  sued  upon  or  presented. - 

But  such  statutes  appear  confined  usually  to  demands  which 
accrue  against  the  deceased  person,  so  as  not  to  apply  to  any 
demands  arising  by  contract,  express  or  implied,  with  the  exec- 
utor or  administrator  himself.  For  claims  of  the  latter  sort,  a 
personal  representative  has  notice  and  opportunity  to  provide, 
so  as  to  save  himself  harmless  ;  and  these  are  affected  by  com- 
mon rules  of  limitations,^  and  of  recoupment  or  set-off.'' 


'  O'Toole  V.  Hurley,  115  Mich.  517. 

^  Willis  V.  Farley,  24  Cal.  490.  See 
67  Cal.  178.  A  claim  against  the  estate 
of  a  deceased  partner  is  included  under 
the  statute.  Fillyan  r'.  Laverty,  3  Fla. 
72. 

Under  the  Massachusetts  statute,  a 
creditor  whose  right  of  action  will  not 
accrue  within  the  period  limited  for 
settling  the  estate,  should  petition  to  the 
probate  court,  setting  forth  a  statement 
of  his  claim  ;  and  the  court,  if  it  appears 
that  the  claim  is  justly  due  from  the 
estate,  will  order  the  executor  or  admin- 
istrator to  retain  assets  sufficient ;  or  a 
person  interested  in  the  estate  may  give 
bond,  with  sureties,  to  the  creditor,  for 
due  payment  of  the  claim.  Mass.  Gen. 
Stats,  c.  97  ;  128  Mass.  528.  See  Brew- 
ster V.  Kendrick,  17  Iowa,  479  ;  Greene 
V.  Dyer,  32  Me.  460.  As  to  rights  of 
action  "  accruing "  after  the  death  of 
the  testate  or  intestate,  presentment  may 
be  made  before  they  actually  mature. 
49  Conn.  251.  A  claim  based  on  a  de- 
ceased surety's  obligation  in  a  guardian's 
bond  need  not  be  presented.  60  Miss. 
987.  A  claim  which  will  certainly  be 
due  when  A.  dies  is  not  a  "  contingent  " 
claim.     78  Ala.  130. 

A  claim  which  the  executor  or  ad- 
ministrator objects  to  ought  to  be  prop- 
erly proved.  63  Miss.  31  ;  38  La.  Ann. 
947;  67  How.  Pr.   346.     What  a  "suc- 


cinct statement "  of  the  claim  must  show. 
See  102  Ind.  521 ;  104  ib.  327.  FiUng 
of  a  claim  against  the  deceased  consti- 
tutes a  sufficient  demand.  104  Ind. 
327.  One  may  lose  his  right  as  some 
codes  run,  if  he  files  but  fails  to  prove. 
67  Iowa,  458.  A  claim  against  one's 
estate  which  might  have  been  made 
against  the  person  while  he  lived,  and 
yet  was  not,  should  be  viewed  with  sus- 
picion.    159  Fenn.  St.  590. 

^  Brown  v.  Porter,  7  Humph.  373 ; 
Perry  v.  Field,  40  Ark.  175.  See  Ames 
V.  Jackson,  115  Mass.  508;  also  Bolt - 
wood  V.  Miller,  112  Mich.  657. 

These  non-claims  statutes,  together 
with  the  local  decisions  construing 
them,  are  very  numerous.  The  practi- 
tioner is  little  interested,  however,  ex- 
cept in  knowing  the  practice  of  his  own 
State.  For  an  English  statute  some- 
what corresponding,  see  Act  22  &  23 
Vict.  c.  35;  24  W.  R.  371.  V\^hile  the 
representative  may  ordinarily  relieve  a 
debt  not  barred  in  his  decedent's  life- 
time from  the  general  statute  of  limita- 
tions, as  contrasted  with  this  special 
one,  yet  in  a  bill  to  marshal  assets  he 
cannot  relieve  some  and  hold  others 
barred.  72  Ga.  495  ;  supra,  §§  389-39 1 . 
He  cannot  waive  the  bar  of  non-claim. 
Ib. ;  77  Ala.  553. 

••  112  Mich.  657.     See,  further,  §  390. 


533 


§  420  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

§  420.    Presentation  of  Claims  ;   Statute  Methods  considered.  — 

Claims  upon  an  estate  must  be  exhibited  for  allowance  as  the 
local  statute  directs.  In  many  States  they  should  be  presented 
first  to  the  e.xecutor  or  administrator  ;  whose  settlement  of  the 
same  in  due  season  will  obviate  all  further  proceedings  on  the 
claimant's  jmrt  ;  while  his  refusal  or  neglect  to  settle  will  throw 
the  claimant  back  upon  the  usual  remedies  at  law ;  the  probate 
tribunal  passing,  not  upon  individual  claims,  but  only  upon  the 
administration  account,  with  its  various  items  ;  nor  in  advance 
of  a  payment,  but  after  payment  has  been  made.' 

But,  in  some  parts  of  the  United  States,  the  probate  court 
exercises  a  direct  supervision  in  the  establishment  of  individual 
claims  upon  a  decedent's  estate,  to  a  greater  or  less  degree.^ 
As  some  local  statutes  prescribe,  the  claimant  must  first  pre- 
sent his  claim  for  allowance  to  the  representative,  upon  whose 
refusal  application  may  be  made  to  the  probate  court,  with  notice 
to  him.  In  various  other  States,  the  practice  is  for  the  probate 
court  to  allow  each  separate  claim  before  it  is  paid.^  A  probate 
court  does  not  commonly  order  allowance,  however,  in  any  such 
sense  as  to  prevent  the  legal  representative  from  contesting  the 
claim  ; "'  nor,  in  general,  so  as  to  impair  the  validity  of  the  cred- 
itor's  claim,  or  his  right  of  action   elsewhere.^     One  object  of 

'  O'Donnell  --.    Hermann,    42    Iowa,         '  Branch  Bank  j-'.  Rhew,  37  Miss,  no; 

60;  39    N.    J.    Eq.    501.     Statutes    re-  Stanford    v.    Stanford,    42    Ind.    485; 

quire  sometimes    notice  or  a    demand  Rosentlial  v.  Magee,  41    111.  371.     But 

upon  the  executor  or  administrator  be-  non-presentment  may  afford  the  estate 

fore  suing.     4  Bush,  405  ;  Busb.  (N.C.)  a  defence  to  an  action  brought  against 

L.  127.  it   to  recover  the  demand.     Whitmore 

-  Hudson  V.  Breeding,  7  Ark.  445;  6  v.  San  Francisco  Union,  50  Cal.  145. 
Ark.  437.  In  States  where  claims  are  duly  filed 

^  Thayer  v.  Clark,  48  Barb.  243 ;  in  court,  it  is  usual  for  the  statute  to 
Danzey  v.  Swinney,  7  Tex.  617;  23  require  that  they  be  authenticated  by 
Cal.  362  ;  Dixon  v.  Buell,  21  III.  203.  the  affidavit  of  the  creditor  before  they 
A  court  of  equity  will  not  assume  juris-  can  be  allowed  against  the  estate.  The 
diction  of  a  claim  in  general  until  the  admission  of  an  administrator  that  the 
claimant  shall  have  exhibited  it  and  had  claim  is  just,  or  an  order  for  its  pay- 
it  allowed  in  the  county  court.  Blan-  ment  by  the  probate  court,  is  a  sufficient 
chard  v.  Williamson,  70  111.  647.  establishment  in  Indiana.     3  Ind.  504. 

*  Magee    v.    Vedder,    6    Barb.    352 ;  Whatever  is  a  good  defence  against  a 

Swenson  v.  Walker,  3  Tex.  93  ;  Prop.st  suit  on  a  claim  is  equally  good  against 

V.    Meadows,    13    111.    157;  Scroogs   v.  its  allowance  by  the  probate  court.     24 

Tutt,  20  Kan.  271.  Miss.    173;   2   Greene   (Iowa)   208.     A 

5  34 


CHAP.  I.]    DEBTS  AND  CLAIMS  UPON  THE  ESTATE. 


§  420 


requiring  presentment  to  the  probate  court  is  the  due  classifica- 
tion and  record  of  the  admitted  demands  upon  the  estate.' 
The  general  policy  indicated  is,  that  neither  the  administrator 
nor  the  probate  court  shall  have  power  to  settle  a  claim  not  au- 
thenticated, presented,  allowed,  and  approved,  according  to  the 
statute.  The  representative  may  object  to  any  such  claim,  and 
oppose  its  admission.^  But  a  claim  admitted  by  the  executor  or 
administrator,  and  thus  allowed  and  classified  by  the  probate 
court,  has,  in  many  States,  the  dignity  and  effect  of  a  judgment. ^ 


claim  against  an  estate  has  no  judicial 
standing  in  the  probate  court  until  it 
has  been  allowed  and  approved ;  and 
until  it  has  been  rejected,  either  by  the 
administrator  or  the  probate  judge,  it 
has  no  judicial  standing  in  any  other 
court.     7  Tex.  617. 

'  Small  sums  may  be  paid  by  the  ex- 
ecutor or  administrator,  under  some 
statutes,  without  a  previous  allowance 
by  the  court ;  but  such  requirements 
cannot  be  evaded  by  splitting  a  single 
and  entire  demand  into  demands  of  the 
excepted  amount.  Clawson  v.  McCune, 
20  Kan.   ■^■^'^ .     See    2    Greene    (Iowa) 

595- 

^  4  Redf .  490.  The  verbal  statements 
of  an  executor  or  administrator  that 
the  claim  is  all  right  and  will  be  paid 
as  soon  as  he  has  money,  will  not  ex- 
cuse the  creditor  from  a  formal  present- 
ment of  the  claim.  40  N.  J.  Eq.  59 ; 
67  Iowa,  458.  In  Louisiana  the  repre- 
sentative is  estopped  from  contesting  a 
claim  which  he  has  placed  on  the  list 
for  settlement,  unless  he  can  show  error 
on  his  part  caused  by  the  other  party's 
fraud.  35  La.  Ann.  858.  A  claim  duly 
allowed  by  an  administrator  need  not 
be  allowed  by  a  successor  again.  39 
Ohio  St.  112. 

Probate  courts  may  upon  general 
statute  notice  make  needful  orders  for 
settlement  and  distribution  without  the 
actual  intervention  of  all  parties  inter- 
ested. And  the  remedy  of  a  party  ag- 
grieved by  its  classification  of   claims 


for  payment  is  by  appeal ;  not  by  origi- 
nal suit  elsewhere.     61  Tex.  213.  s 

Claims  are  thus  ranged  in  various 
classes  agreeably  to  the  local  code. 
Allowance  of  a  claim  is  not  conclusive  of 
its  validity  under  many  codes.  Where 
one  is  administrator  of  both  the  cred- 
itor and  debtor  estate,  no  formal  pre- 
sentment and  allowance  is  needful.  39 
Ohio  St.  112.  Nor  need  claims  already 
of  record,  such  as  a  mortgage,  be  for- 
mally presented,  under  some  codes. 

3  Tate  V.  Norton,  94  U.  S.  Supr.  746; 
Carter  v.  Engles,  35  Ark.  205. 

Claims  of  non-resident  creditors  may 
be  admitted  with  those  of  resident  cred- 
itors under  a  rule  of  comity,  and  with 
like  restrictions.  Findley  v.  Gidney,  75 
N.  C.  395 ;  Miner  v.  Austin,  45  Iowa, 
221 ;  Howard  v.  Leavell,  10  Bush,  481. 

In  New  York  a  decree  of  the  surro- 
gate court  establishing  the  indebtedness 
of  an  estate  appears  to  be  binding  upon 
the  legal  representative,  and  conclusive, 
both  as  to  the  indebtedness  and  the  ob- 
ligation of  the  representative  to  make 
payment  as  decreed.  Thayer  v.  Clark, 
48  Barb.  243.  The  evidence  to  sustain 
a  claim  need  not  appear  of  record ;  and 
a  probate  decree  ascertaining  and  al- 
lowing a  claim,  and  ordering  the  exec- 
utor or  administrator  to  pay  it,  is  not  a 
technical  "judgment"  without  author- 
ity, but  a  mere  ascertainment  of  its 
validity  and  amount,  which  remains  to 
be  satisfied  according  to  law.  Little  -<•. 
Sinnett,  7  Iowa,  324.     And  see  Magraw 


535 


§   421  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

This  filing  of  claims  is  not  an  uncommon  incident  of  bank- 
ruptcy and  insolvency  practice  ;  but,  with  reference  to  the  estate 
of  a  decedent  which  proves  insolvent,  a  statutory  course  is 
marked  out  by  our  several  codes.  And  even  in  States  where 
an  ordinary  executor  can  pay  no  claims  that  have  not  been  judi- 
cially approved  and  must  defend  the  estate,  and  require  proof ; 
an  executor  who  has  given  bond  as  residuary  legatee  can  settle 
claims  at  his  discretion  and  no  one  can  question  his  acts  in  this 
respect  but  his  sureties  when  his  course  has  brought  them  into 
trouble."  Where  upon  appeal  from  a  probate  court  a  claim  is 
allowed  and  the  representative  has  sufficient  assets,  he  should 
pay  the  same  as  though  it  had  been  originally  allowed  by  the 
probate  court. ^ 

§  421.  Funeral  Charges  and  their  Priority. —  Funeral  charges 
are  not,  to  speak  accurately,  debts  due  from  the  deceased,  but 
charges  which  the  law,  out  of  decency,  imposes  upon  the  estate  ; 
and  so  far  as  these  are  reasonable  in  amount,  they  take  legal 
priority  of  all  such  debts,  as,  likewise,  do  the  administration 
charges.^  A  decent  burial  should  comport  with  the  condition 
of  the  deceased  and  the  amount  of  his  fortune.  Justice  to  cred- 
itors, as  well  as  to  one's  surviving  family,  demands,  however, 
that  there  shall  be  no  extravagant  outlay  to  their  loss.-*  If  due 
regard  to  the  character  and  social  or  public  standing  of  the  de- 
ceased requires  a  more  costly  funeral,  public  or  private  liberality 
should  defray  the  additional  cost. 

The  standard  of  reasonable  burial  expenses  is  established  by 
local  and  contemporary  usage  ;  for  religious  and  humane  senti- 
ment carries  the  cost  far  beyond  what  mere  sanitary  rules  might 
prescribe,  and  that  sentiment  should  not  be  outraged.  In 
strictness,  observed  Lord  Holt  in  an  early  case,  no  funeral  ex- 
penses are  allowable  in  an  insolvent  estate,  except  for  the  coffin, 
ringing  the  bell,  and  the  fees  of  the  clerk  and  bearers ;  pall  and 

V.  McGlynn,  26  Cal.  420.     But  c£.  144  ^  To  these,  local  American   statutes 

Mo.  258,  where  an  allowance  by  court  add  expenses  of  last  illness,  as  among 

has  the  force  of  a  judgment.  preferred  claims.     See^ost. 

'  Durffee  v.   Abbott,   50   Mich.   278 ;  <  2  Bl.  Com.  508 ;  Wms.  Exrs.  968 ; 

Wheeler  z/.  Hatheway,  58  Mich.  77.  Parker  v.  Lewis,  2  Dev.  L.  21;  Flint- 

-  Berkey  v.  Judd,  31  Minn.  271.  ham's  Appeal,  11  S.  &  R.  16. 


CHAP.    I.]         DEBTS    AXH    CLAIMS    UPOX    TIIK    KSTATp:.  §   42  I 

ornaments  are  not  included."  This  statement,  though  inappro- 
priate to  our  times,  suggests  that  the  line  be  drawn  so  as  to  in- 
clude what  is  necessary  in  the  sense  of  giving  a  Christian  burial, 
excluding  the  ornamental  accompaniments  and  provision  for 
mourners  and  strangers  which  they  might  make  for  themselves. 
Thus,  at  the  present  day,  the  undertaker's  and  grave-digger's 
necessary  services  should  be  allowed  in  addition  to  those  pertain- 
ing to  the  religious  exercises  ;  also  the  cost  of  a  plain  coffin  or 
casket,  the  conveyance  of  the  remains  to  the  grave,  and  the 
grave  itself ;  all  these  being  essential  to  giving  the  remains  a 
decent  funeral.  On  the  other  hand,  mutes,  weepers,  pall- 
bearers, in  needless  array  ;  carriages  for  mourners,  and  especially 
carriages  for  casual  strangers ;  floral  decorations,  refreshments, 
hired  musical  performances  ;  and  the  processional  accompani- 
ments of  a  funeral,  —  all  these,  though  appropriate,  often,  to  the 
burial  of  those  who  are  presumed  to  have  left  good  estates,  are 
inappropriate  to  the  poor,  the  lowly,  and  those  whose  creditors 
must  virtually  pay  or  contribute  to  the  cost.  Public  demonstra- 
tions which  increase  the  outlay,  the  attendance  of  societies  to 
which  the  deceased  belonged,  military  and  civic  escorts,  and  the 
like,  are  always  properly  borne  by  such  bodies  or  by  the  public 
thus  gratified,  rather  than  imposed  as  a  charge  upon  a  private 
estate  which  cannot  readily  bear  the  burden.^ 

The  religious  persuasion  of  the  deceased,  or,  perhaps,  of  his 
immediate  family,  may  be  fairly  considered  in  determining  the 
character  and  items  of  cost  in  the  funeral ;  thus,  Jewish,  Chris- 
tian, and  Pagan  usages  differ  on  these  points,  likewise  Catholic 
and  Protestant,  nor  do  all  Protestant  sects  agree  among  them- 
selves. National  habits,  and  those  of  one's  birthplace,  besides, 
deserve  consideration,  whatever  be  the  last  domicile.  The  pre- 
sumption is  that  the  deceased  has  desired  to  be  buried  in  ac- 
cordance with  the  usages  and  customs,  civil  and  religious,  of  the 

'  Shelley's  Case,  i    Salk.  296.     Burn-  Shaeffer  v.  Shaeffer,  54  Md.  679.      If 

well  suggests  that  the  expenses  of  the  public  or    benevolent    societies   defray 

shroud  and  digging  the  grave  ought  to  part  of  the  cost,  only  the  excess  can  be 

have  been  added.     4  Burn.  Ecc.  L.  348,  charged  to  the  estate.     11    Phila.   135. 

8th  ed.     As  to  a  suit  of  clothes  to  lay  Cost  of  a   commandery    parade   disal- 

out  the  deceased  in,  see  2  Tenn.  Ch.  369.  lowed  in  1 24  N.  Y.  388. 

^  Hew-ett     V.     Bronson,    5    Daly,    i  ; 

537 


§4-1  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

society  to  which  he  belonged,  and  so  as  to  retain  its  respect.' 
But  the  last  express  wishes  of  the  deceased  may  well  be  com- 
plied with,  in  directing  the  style  and  character  of  the  funeral, 
provided  these  wishes  be  not  extravagant  or  unreasonable,  and 
no  injustice  be  done  to  creditors  and  others  in  interest ;-  and 
the  sanction,  too,  of  one's  immediate  family  is  an  element  of 
some  importance  in  arrangements  so  delicate,  which  necessarily 
depend  more  upon  the  presumed  than  the  actual  condition  of 
one's  estate. 

Keeping  these  elements  of  distinction  in  view,  the  standard 
of  allowance  for  funeral  expenses  may  be  often  regulated  most 
conveniently  by  fixing  a  sum  total.  Thus,  the  English  practice, 
prior  to  Lord  Hardwicke's  day,  was  to  allow  at  law  only  40i-., 
then  jCS^  ^I'^d  afterwards  £io,  for  the  funeral  of  a  deceased  in- 
solvent ;  ^  but  English  cases,  by  no  means  modern,  justify  the 
allowance  of  ^20  in  such  cases.''  There  are  American  de- 
cisions bearing  upon  this  point.-"'  The  standard  varies  essen- 
tiall)',  however,  with  the  age  and  locality  ;  as  between  city  and 
country  or  polished  and  simple  communities  ;  and,  in  general, 
according  to  the  testator's  station  in  life  ;  all  this  aiding,  doubt- 
less, in  fixing  a  scale  of  prices  which,  even  in  such  simple  items  as 
the  cost  of  a  coffin,  may  vary  greatly.  Though  one  should  prove 
to  have  died  insolvent,  his  social  condition  and  apparent  means 
might  yet  have  justified  a  funeral  in  accordance  with  his  expec- 
tations and  those  of  his  kindred  ;  especially,  if  the  personal  rep- 
resentative had  not  reason  at  the  time  for  suspecting  the  estate 
insolvent.^  Special  circumstances,  too,  may  justify  an  expendi- 
ture unusually  great  in  one  or  more  particulars  ;  as  if  one's  local 
fame  should  forbid  a  funeral  strictly  private  ;  ^  or  if  one  should  die 

'  Hewett  z'.  Bronson,  5  Daly,  i.    See,  i  B.  &  Ad.  260 ;   Yardley  7:  Arnold,   1 

as  to  the  funeral  obsequies  of  a  Hindoo  C.  &  M.  434. 

testator,  i  Knapp,  245  ;  Wms.  Exrs.  971.  ^  Where  the   estate  is  insolvent,  not 

But  a  vicious  usage  cannot  be  set  up.  more  than  ^200  should  be  allowed  for 

Shaeffer  v.  Shaeffer,  54  Md.  679.  a  funeral.     28  La.  Ann.  149.     No  more 

'^  See    Stag  v.    Punter,   3    Atk.    119;  than  $300  under  any  such  circumstan- 

Donald  v.  McWhorter,  44  Miss.  102.  ces.     3  MacArthur,  537. 

'  Bull.  N.  P.   143  ;  Stag  v.  Punter,  3  *  3  Atk.  119  ;  Wms.  Exrs.  969,  970. 

Atk.  119.  "  Prec.  Ch.  261. 

*  Bayley,  J.,  in  Hancock  v.  Podmore, 


CHAP.   I.]         DEBTS    AND    CLAIMS    UPON    THE    ESTATE. 


5?  421 


far  from  home  or  far  from  his  proper  burial-place  ;  '  though, 
even  here,  the  limited  means  at  the  fair  disposal  of  the  executor 
or  administrator  should  not  be  transcended  in  careless  disregard 
of  legal  claimants,  but  public  or  private  benefactions  should 
make  up  the  rest.- 

Items  not,  perhaps,  strictly  within  the  rule  of  funeral  charges, 
have  been  allowed  from  an  estate,  out  of  regard  to  particular 
circumstances  or  a  decedent's  last  directions.  Thus  a  moderate 
allowance  is  sometimes  made  in  the  executor's  or  administrator's 
accounts  for  the  mourning  apparel  of  the  widow  and  children  ;  ^ 
or  even  for  "mourning  rings  "  distributed  among  near  relatives  ;* 
though,  in  the  case  of  an  insolvent  estate,  especially  where  the 
insolvent  was  a  person  of  no  distinction,  such  charges  seem 
hardly  proper.s  And,  over  carriages  used  for  the  immediate 
family  of  the  deceased,  and  other  incidental  charges  of  trivial 
am.ount,  vexatious  dispute  is  undesirable  ;  ^  for,  if  one  dies  with- 
out leaving  the  means  of  paying  his  creditors,  those  naturally 
dependent  upon  him  must  needs  suffer,  too.      Foolish  and  ex- 


'  In  Stag  V.  Punter,  3  Atk.  119,  Lord 
Hardwicke  allowed  £60  for  the  funeral 
expenses  of  a  testator,  dying  apparently 
with  a  good  fortune,  who  had  directed 
his  burial  at  a  place  thirty  miles  distant 
from  the  place  of  his  death.  See  also 
Hancock  v.  Podmore,  i  B.  &  Ad.  260. 

^  Such  expenses  are  not  limited  by 
one's  will  in  amount,  where  the  funeral 
is  duly  contracted  for  in  ignorance  of 
such  testamentary  restriction.     92  Cal. 

293- 

^  2  Cas.  temp.  Lee,  508 ;  Wood's 
Estate,  I  Ashm.  314;  Holbert,  Succes- 
sion of,  3  La.  Ann.  436. 

■•  Paice  V.  Archbishop  of  Canterbury, 
14  Ves.  364. 

'  Johnson  v.  Raker,  2  C.  &  P.  207  ; 
Flintham's  Estate,  11  S.  &  R.  16. 

''  Save  so  far  as  one  surviving  spouse 
may  be  legally  bound  to  bury  the  other 
(see  Schoul.  Has.  &  Wife,  §§  412,  437); 
a  claim  might  sometimes  be  set  up  in 
connection  with  providing  for  a  funeral 
at  a  private  house,  sufficient  to  furnish 

5 


a  consideration  for  troublesome  special 
items,  of  small  consequence,  which  cred- 
itors incline  to  dispute. 

The  common  law  rule  makes  it  the 
husband's  duty  to  defray  the  expense  of 
burying  his  deceased  wife  in  a  suitable 
manner,  and  he  ought  not  to  charge 
her  estate  with  the  cost.  Staples's  Ap- 
peal, 52  Conn.  425.  So  is  it  with  a 
minor  child  ;  and  where  an  insolvent  and 
his  wife  and  young  child  while  travelling 
in  a  distant  State  were  all  killed  by  the 
same  accident,  the  expenses  of  sending 
home  and  burying  all  three  were  allowed 
as  a  prefeired  claim  against  the  estate 
of  the  insolvent.  Sullivan  v.  Horner, 
41  N.  J.  Eq.  299;  Schoul.  Dom.  Rel. 
§  199.  Under  an  Ohio  statute  a  married 
woman's  estate  may  be  charged  with 
such  expenses,  even  though  a  husband 
leaving  property  should  survive  her. 
McClellan  v.  Filson,  44  Ohio  St.  184. 
The  same  effect  has  been  given  in  chan- 
cery where  the  wife  has  separate  prop- 
erty.    M'Myn,  Re,  ^  Ch.  D.  575. 

39 


§  42  2  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

travagant  funerals  ordered  by  those  not  immediately  concerned 
in  the  estate  are  not  to  bind  the  representative  and  the  immedi- 
ate family  of  the  deceased. 

Claims  founded  in  the  expenses  incurred  by  relatives  of  the 
deceased  in  attending  the  funeral,  their  services  and  time,  are 
not  to  be  favored  in  settling  a  decedent's  estate ;  for  these  are 
presumably  offices  of  respect  and  tenderness,  gratuitously  ren- 
dered, and  neither  purchased  nor  solicited.'  But  it  may  be 
otherwise  where  services  valuable  to  the  estate  are  rendered, 
upon  the  same  occasion,  and  especially  by  one  not  otherwise 
bound  in  honor  to  attend  ;  or  where  the  attendance  was  at  the 
express  request  of  the  dying  person  ;  and  these,  according  to 
circumstances,  may  be  classed  among  funeral,  last  illness,  or  ad- 
ministration charges.  Thus,  extraordinary  cases  may  arise  where 
the  expense  of  summoning  kindred  from  a  distance,  or  of  ac- 
companying the  remains  to  or  from  some  distant  point,  or  of 
procuring  some  needful  or  desired  attendance,  as  for  opening 
the  will  or  examining  papers,  may  properly  be  allowed  in  the 
accounts  of  an  executor  or  administrator.- 

In  general,  allowances  for  a  funeral  depend  much  upon 
whether  the  estate  was  insolvent  or  not,  and  whether  items  in 
the  account  presented  are  objected  to  or  not  by  parties  inter- 
ested. For  those  entitled  to  the  surplus  of  an  ample  estate  may 
all  agree  to  bear  the  cost  of  a  most  extravagant  funeral. 

§422.  Funeral  Charges;  Place  of  Final  Interment,  Gravestone, 
etc. —  Funeral  charges,  in  the  literal  sense,  are  always  to  be 
incurred  in  haste,  usually  without  the  means  of  ascertaining  the 
true  state  of  the  decedent's  fortune  or  who  ma)'  rightfully  share 
it,  and  often  at  the  discretion  of  a  surviving  spouse,  or  of  some 
near  relativ'e  or  friend,  without  sanction  from  an  undisclosed 
or  at  least  unaccredited  legal  representative.^     But  the  first  fu- 


'  Lund  V.  Lund,  41  N.  H.  355.  items  for  allowance.  Shaefferz-.  Shaeffei, 

^Jennison  7-.   Hapgood,   10  Pick.  77;  54  Md.  679. 
Mann  t/.  Lawrence,  3  Bradf.   Sur.  424;         'See  §193.    The  liability  of  an  estate 

Wall's  Appeal,  38  Penn.  St.  464.     Din-  for  reasonable  and  proper  funeral  and 

ner  and  horse  feed,  provided  for  those  burial   expenses,    although    neither   or- 

attending  a  funeral,  are  held  improper  dered   nor  ratified   by  the  executor  or 

540 


CHAl'.    I.J         DEBTS    AND    CLAIMS    II'ON     llll';    ESTATE.  §   422 

neral  charges  are  not  necessarily  the  last  ;  and  those  last,  the 
representative  should  fix  upon  with  much  deliberation.  Circum- 
stances may  justify  a  temporary  interment,  pending  the  final 
settlement  of  the  estate. 

The  purchase  of  a  burial  lot  or  tomb,  when,  as  often  happens, 
the  deceased  owned  none  at  his  death,  may  thus  become  a  mat- 
ter for  delicate  adjustment  between  one's  legal  representative 
and  members  of  his  immediate  family  ;  the  last  having  usually 
the  right  of  selection,  and  claiming  from  the  estate,  in  return, 
what,  according  t(^  the  decedent's  condition  and  circumstances, 
would  be  fair  remuneration  for  his  own  place  of  final  interment, 
and  as  to  themselves  holding  the  title  to  the  lot  or  tomb,  with 
the  remaining  burial  rights  therein,  as  statute  or  the  cemetery 
rules  may  determine.'  As  to  any  estate,  and  an  insolvent's  es- 
tate in  particular,  there  is  no  legal  reason  why  the  executor  or 
administrator  should  pay  in  full  for  land  or  a  tomb  in  which 
others  than  the  decedent  are  to  have  burial  rights  ;  while  it  is 
certain  that  for  his  own  last  resting-place  or  burial  right,  a  de- 
cedent's estate  ought  to  be  charged.  Provisions  relating  to  the 
place  of  burial  are  frequently  made,  however,  in  one's  last  will ;  - 
and  directions  may  thus  be  given  by  the  general  owner  as  to 
the  use  and  care  of  the  lot  his  remains  are  to  occupy.  The  ex- 
pense of  fencing,  preserving,  and  improving  a  lot,  where  others 
are  interred,  is  not  justly  chargeable  otherwise  upon  the  estate 
of  a  particular  occupant ;  while  public  cemeteries  are  usually 


administrator   subsequently  appointed,  may,  even  to  the  extent  of   a  burial  lot, 

is  implied  by  law  from  the  peculiar  ne-  devolve    upon    the  surviving  spouse  or 

cessities  of  the  situation.    Fogg  v.  Hoi-  family,  so  far  as  may  be  reasonable  or 

brook,  88  Me.  169;  87   Me.   324;  Hap-  just.     Pettengill  v.  Abbott,    167  Mass. 

good  V.   Houghton,   10   Pick.  154;   139  307. 

Mass.    304.      As   to    burial   of   a   wfe  ^  See  Cool  v.   Higgings,  23  N.  J.  Eq. 

who  leaves  an  estate,  and  an  insolvent  308  ;  Luckey,  Re,  4  Redf.  265.     A  tes- 

husband,  see  53  N.  J.  Eq.  341.     As  to  tator  who   directed  by  his  will  that  a 

burial   expenses  incurred  by  a  widow,  suitable  monument   should  be  erected 

see  Walton  v.  Hall,  66  Vt.  455.     And,  over  his  grave,  left  a  large  fortune,  in 

in  general,  see  Loftis  ».  Loftis,  94  Tenn.  great  part  to  charities;  and  $6,000  was 

232  ;  Joy  V.  Fesler,  67  N.  H.  237  ;  Dud-  held  not  an  unreasonable  amount  to  e.\- 

ley  z'.  Sanborn,  159  Mass.  185.  pend  for  the  monument.      Cannon  v. 

'Providing  a  suitable  place  of  burial  Apperson,  14  Lea,  553. 


§  422  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

inclosed  at  the  cost  of  the  company  or  the  public'  The  choice 
of  a  burial-place  is  regulated,  to  some  extent,  by  the  means  and 
condition  of  the  deceased,  and  the  wishes  of  the  immediate 
family.  As  to  its  care,  improvement,  and  prescr\'ation,  more- 
over, sole  ownership  may  involve  present  liabilities  whose  recom- 
pense is  to  be  found  in  the  sale  of  other  burial  rights  later ;  nor 
does  the  title  necessarily  vest  in  the  executor  or  administrator, 
but  rather  in  a  surviving  spouse  or  heirs.  Disinterment  or  re- 
burial  is  justified  in  a  variety  of  suitable  instances.^ 

A  gravestone  or  monument  is  an  item  of  cost  allowable  to  a 
reasonable  amount  in  the  settlement  of  the  estate.^  Some  sort 
of  marker,  to  identify  and  protect  the  remains,  seems  highly 
proper  in  all  cases  ;  but,  beyond  this,  the  choice  takes  so  wide  a 
range,  from  the  needful  to  the  highly  ornamental,  that  the  dis- 
cretion of  the  court  has  often  been  invoked.  The  general  rule 
of  funeral  charges  here  applies,  that  no  precise  sum  can  be  fixed, 
but  the  standard  must  vary  with  local  price  and  usage,  the  sta- 
tion in  life  of  the  deceased,  and  the  extent  of  his  fortune.  Even 
as  against  creditors,  the  expense  of  a  modest  gravestone  has 
been  allowed  ;  though  it  is  admitted  that  an  estate  can  be  settled 
in  avoidance  of  such  outlay  ;  while  it  would  appear  that  in  some 
.States  no  gravestone  can  be  charged  to  an  insolvent  estate 
against  the  consent  of  creditors.'*     As  to  statues  and  monuments 

'Tuttle<7.   Robinson,  ^3   ^-  H.  104;  pressly  the  erection  of  suitable  monu- 

Barclay's  Estate,  11    Phila.   123.     Stat-  ments  at  the  reasonable  expense  of  the 

utes  regulate  this  subject  to  some  e.x-  estate ;    and  this  includes  a  power  of 

tent.     lb.    $351  is  not  unreasonable  for  doing  what  is  needful  to  keep  the  monu- 

a  burial  lot,  where  the  estate  amounted  ment    in  proper   condition    during   the 

to  $13,000.    4  Redf.  265.    See  3  Redf.  8.  time  of  the  administration.     Durkin  z/. 

^See  3  Dem.  524;  Watkins  v.  Ro-  Langley,    167    Mass.    577.     But,   aside 

mine,  106  Ind.  378;  §542.     The  need-  from  this,  executors  have  been  allowed 

less  removal  of  an  intestate's  remains,  to  make  necessary  repairs  upon  a  tomb 

against    the  wishes    of   the   immediate  or  monument  although  a  provision  for 

family  is  not  to  be  favored.     106  Ind.  such    repairs,   which  turns   out    insuffi- 

378.     But    removal    of    one's    remains  cient,  was    made  in  the  will.     Bell  v. 

from   abroad,  in  case  of  an  ample  es-  Briggs,  63  N.  H.  592. 

tate,  and  in  accordance  with  the  last  *  See  Brackett  v.  Tillotson,  4  N.  H. 

wishes  of  deceased,  or  of  his  immediate  208.     Such  a  rule  ought  not,  we  think, 

family,  is  proper.     Parry's  Estate,    188  to  be  inflexible ;  but  to  vary  somewhat 

Penn.  St.  38.  with  circumstances,  nor  in  any  case  to 

^  Local  codes  sometimes  sanction  ex-  exclude  the  cost  of  a  simple  marker. 


CHAP.  I.]    DEBTS  AND  CLAIMS  UPON  THE  ESTATE. 


§  422 


of  costly  design,  the  executor  or  administrator  ought  either  to 
have,  besides  an  ample  estate,  the  explicit  directions  of  the  de- 
ceased as  his  warrant,  or  the  consent  of  the  heirs,  or  the  pre- 
vious approbation  of  the  probate  court ;  and  his  safer  and  more 
natural  course  is,  in  general,  to  let  the  family  and  those  inter- 
ested in  the  surplus,  or  nearest  to  the  deceased,  fix  upon  some- 
thing appropriate  in  structure,  design,  and  inscription  ;  binding 
the  estate,  on  his  part,  only  for  a  reasonable  proportion  of  the 
cost,  if  the  cost  be  large,  and  requiring  them  to  stand  responsi- 
ble for  any  excess.'     Where  the  cost  of  a  monument  is  to  be 


Tombstones,  in  the  proportion  of  about 
^30  to  an  estate  of  ^3,000,  have  been 
allowed  in  various  American  cases. 
Lund  z'.  Lund,  41  N.  H.  355;  Jennison 
V.  Hapgood,  10  Pick.  77;  Fairman's 
Appeal,  30  Conn.  205 ;  Springsteen  v. 
Samson,  32  N.  Y.  714;  Webb's  Estate, 
165  Penn.  St.  330.  In  an  estate  of 
$11,096,  the  executor's  allowance  for  a 
monument  (the  residuary  legatee  op- 
posing) was  cut  from  ^1,455  to  half  that 
sum.  4  Redf.  95.  An  administrator 
may,  on  his  own  contract,  render  the 
estate  liable  for  suitable  gravestones, 
and  especially  if  the  estate  be  not  in- 
solvent. Ferrin  v.  Myrick,  41  N.  Y. 
315;  Porter's  Estate,  77  Penn.  St.  43. 
And  see  Mass.  Pub.  Stats,  c.  144,  §  6. 
An  expensive  monument,  however,  is 
hardly  to  be  erected  at  the  sole  discre- 
tion of  a  personal  representative.  But- 
ler, J.,  lays  the  rule  down  quite  cau- 
tiously on  this  point  in  Fairman's 
Appeal,  30  Conn.  205.  And  Lund  z'. 
Lund,  41  N.  H.  355,  disapproves  of 
the  erection  of  expensive  monuments 
without  the  previous  assent  of  the  heirs, 
etc.  Special  circumstances  ought  to 
justify  a  liberal  expenditure  of  this  kind ; 
as  where  there  is  a  fair  balance,  but 
only  distant  relatives  who  are  so  scat- 
tered and  numerous,  that  distribution 
will  hardly  justify  the  cost,  and  the  only 
relative  who  can  be  easily  consulted 
approves  the  plan. 

In   general,    the   cost   of    erecting    a 


headstone  at  the  grave  may  be  allowed 
to  the  representative  as  "  funeral  ex- 
penses," but  only  to  the  extent  of  pro- 
viding for  a  decent  burial,  according  to 
the  amount  of  the  estate.  Owens  v. 
Bloomer,  21  N.  Y.  Supr.  296.  Nor  can 
a  widow  of  the  deceased  bind  the  repre- 
sentative or  the  estate  for  a  monument 
erected  on  her  own  responsibility  and 
order.     Foley  v.  Bushway,  71  111.  386. 

'  Where  one  leaves  a  good  estate, 
and  no  children  or  near  kindred,  the 
cost  of  a  handsome  monument  which 
the  widow  desired  may  be  allowed;  but 
pictures  of  the  deceased,  and  other  per- 
sonal memorials  for  the  gratification  of 
the  living,  are  not  properly  chargeable 
to  the  estate  of  the  dead.  McGlinsey's 
Appeal,  14  S.  &  R.  64;  Pistorius's 
Appeal,  53  Mich.  350.  A  delicate  re- 
gard for  all  those  whose  pecuniary 
interests  are  likely  to  be  diminished  by 
the  funeral  charges  should  influence 
the  legal  representative;  but,  at  the 
same  time,  if  the  estate  be  solvent,  he 
need  not  permit  penurious  and  unfeeling 
kindred  to  rob  the  deceased  of  the  last 
decent  tributes  to  his  memory.  Funeral 
charges  are,  by  legal  intendment,  enough 
for  decency  and  no  more ;  but,  by  the 
agreement  of  those  interested,  and  con- 
tributions by  them  or  others,  outside  of 
the  estate,  or  (if  the  estate  be  ample) 
under  a  testator's  express  directions,  the 
strict  legal  limit  may  be  far  exceeded, 
and  expenses  incurred,  by  way  of  me- 


543 


§  422 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


defrayed  by  friends  of  the  deceased  or  the  public,  a  similar  mu- 
tual consultation  and  understanding  is  proper.  Monuments  and 
memorials  of  the  deceased,  which  have  no  connection  with  fu- 
neral charges  or  the  place  of  final  interment,  cannot,  of  course. 


morial  to  the  deceased,  which  have  no 
immediate  connection  at  all  with  funeral 
or  burial.  In  Bainbridge's  Appeal,  97 
I'enn.  St.  482,  the  court  refused  to  con- 
trol the  discretion  of  an  executor  in  us- 
ing the  entire  residue  of  the  estate,  after 
pajnng  certain  legacies,  in  erecting  a 
monument ;  such  being  the  testator's 
direction  in  his  will. 

The  better  opinion  is  that,  the  duty 
thus  fairly  performed  for  the  benefit  of 
the  deceased,  the  expenses  constitute  a 
charge  upon  his  estate  so  far  as  they 
were  reasonable  and  necessary ;  and  that 
the  law  impUes  a  promise  on  the  part 
of  the  executor  or  administrator  to  pay 
them,  so  far  as  the  assets  suffice  for  this 
and  the  other  first  preferred  charges, 
including  his  own;  not,  however,  to  the 
extent  of  compelling  him  to  defray  them 
from  his  private  means,  where  he  has 
disclaimed  personal  liability  and  pleads 
the  want  of  assets.  Wms.  Exrs.  1788  ; 
Tug\vell  -'.  Heyman,  3  Camp.  298 ; 
Hapgood  v.  Houghton,  10  Pick.  154; 
I'atter.son  -j.  Patterson,  59  N.  Y.  574, 
and  cases  cited.  See«</rrt,  §  398.  And 
as  to  set-off,  see  86  N.  C.  1 58.  One  who, 
in  the  absence  or  neglect  of  the  legal 
representative,  incurs,  from  the  neces- 
sity of  the  case,  and  pays  such  expenses, 
may  avail  himself  of  this  implied  promise 
for  his  own  reimbursement ;  and  if  the 
expenditure  conforms  to  his  reasonable 
observation  of  the  decedent's  property, 
and  with  the  decedent's  apparent  condi- 
tion in  life,  payment  in  full  is  proper, 
consistently  with  the  other  first  preferred 
claims,  even  though  the  estate  should 
turn  out  insolvent.  Patterson  v.  Patter- 
son, 59  N.  Y.  574  ;  Rooney,  Re,  3  Redf. 
(N.  Y.)  15;  supra,  §  398.  If  the  ex- 
pense be  not  unreasonable  the  consent  of 

5 


the  next  relative  is  not  needful.  Lutz 
V.  Gates,  62  Iowa,  513.  Especially  if 
the  widow  desired  it.  Pistorius's  Ap- 
peal, 53  Mich.  350. 

.\s  to  a  debtor  of  the  deceased  who 
furnished  an  unsuitable  coffin  and  then 
tried  to  have  its  cost  deducted  from  his 
debt,  see  92  N.  C.  471. 

But  for  what  is  not  apparently  reason- 
able or  necessary,  as  against  the  estate, 
and  especially  in  charges  like  that  of  a 
monument,  which  may  be  postponed 
until  the  appointment  of  a  legal  repre- 
sentative, after  the  condition  of  the  es- 
tate was  known,  the  widow,  relative,  or 
stranger  cannot  bind  the  estate  or  its 
representative  upon  any  such  implied 
promise.  Foley  v.  Bushway,  7 1  111.  386 ; 
Samuel  v.  Thomas,  51  Wis.  549.  Rather 
does  the  expenditure  bind  the  person 
who  took  the  responsibility  of  contract- 
ing for  it.  Foley  v.  Bushway,  71  111. 
386.  That  the  administrator  knew  the 
work  was  being  done,  and  did  not  ob- 
ject, is  insufficient  here  to  charge  him. 
lb.  And  see  Lerch  v.  Emmett,  44  Ind. 
331.  And  one.  like  a  rich  relative  or 
friend,  who  incurs  funeral  or  burial 
charges  upon  his  own  express  under- 
taking to  bear  the  cost,  cannot  charge 
the  estate  afterwards.  See  Coleby  r. 
Coleby,  12  Jur.  N.  s.  476. 

Before  the  executor  or  administrator 
can  be  sued  on  a  demand  for  funeral 
charges,  it  is  held  that  he  should  W- 
notified,  within  a  reasonable  time,  of  tlic' 
amount  due,  with  proper  items.  Ward 
71.  Jones,  Busb.  L.  127;  Gregory  ?■. 
Hooker,  i  Hawks.  394.  .\  physician's 
charge  for  a  fast  mortem  examination, 
made  on  a  coroner's  inquest,  is  not  :t 
proper  claim  against  the  estate.  Smith 
7'.   McLaughlin,  77    111.   596.     Nor  is  a 

44 


CHAP.   1.]         DEBTS    AND    CLAIMS    UFO\    TliE    ESTATE.  §   423 

be  made  a  burden  upon  the  estate  to  the  detriment  of  unwilling 
parties  in  interest.  But  with  or  without  the  consent  of  these, 
the  probate  court  may  conclude  how  much  should  be  expended.' 

§  423.  Other  Preferred  Claims ;  Administration  Charges;  Debts 
of  Last  Sickness.  —  Administration  charges  rank  with  those  of 
the  funeral  in  taking  a  general  precedence  of  creditors'  demands. 
WTiat  administration  charges  should  thus  be  allowed,  we  shall 
best  consider  in  a  later  connection.^ 

Statutes  in  various  States  rank  the  necessary  expenses  of  a 
decedent's  last  sickness  under  preferred  claims ;  ^  though  the 
rule  is  of  modern  creation,  nor  does  it  to  this  day  obtain  in 
England.^  A  physician's  services,  proper  medicines,  the  at- 
tendance of  a  nurse,  may  be  thus  claimed  ;  and  probably,  if  the 
last  illness  occurred  in  a  stranger's  house,  a  reasonable  recom- 
pense for  the  use  of  premises,  and  injury  done  to  beds  and  bed- 
ding, and  under  various  special  circumstances,  perhaps,  food 
and  personal  services  ;  always,  however,  rating  such  expendi- 
tures according  to  the  place,  character,  and  extent  of  the  last 
illness,  and  ranking  all  together.  No  precise  rule  can  be  laid 
down  as  to  the  duration  of  one's  last  illness,  nor  for  the  degree 
of  attention  paid ;  this  must  vary  with  the  nature  of  the  disease 
and  the  situation  of  the  patient.5  Unlike  administration  and 
funeral  expenses,  these  are  not  charges  growing  out  of  one's 
death,  but  rather  debts  due  from  the  deceased  for  serAices  ren- 
dered him  during  his  life  ;  ^  yet  a  similar  necessity  may  cause 
them  to  be  rendered  independently  of  one's  consent,  and  a  sim- 
ilar policy  favors  their  priority.'' 

charge   for   medical    services    rendered  Flitner  z/.  Hanley,  18  Me.  270;  Elliott's 

to  the  family  of  the  testate  or  intestate  Succession,  31  La.  Ann.  31. 

after  his  decease.     Johnston  v.  Morrow,  *  United  States  v.  Eggleston,  4  Saw- 

28  N.  J.  Eq.  327.  yer  (U.  S.  Cir.)  199. 

'  Crapo  V.  Armstrong,  61  Iowa,  697  ;  ^  We   shall   see,   hereafter,  that  the 

62  ib.  513.  statute  allowance  to  a  widow  and  young 

^  See/>ost,  Part  VII.  children,  in  various    States,   may  also 

^  Mass.  Gen.  Stats,  c.  99,  §  i ;  Wilson  take  precedence  of  general  debts  due 

V.  Shearer,  9  Met.  507.  from  the  deceased  person's  estate.     C. 

*  Wms.  Exrs.  968,  988.  2,  posi.     Under  the  Georgia  code  the 

'  Percival  v.  McVoy,   Dudley  (S.  C.)  support  of  family  for  a  year  has  prece- 

337  ;  Huse  v.   Brown,  8   Greenl.    167  ;  dance  over  the  physician's  bill.     73  Ga. 

35  545 


§  425  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

§  424.  These  Preferred  Claims  rank  together;  Settlement  in 
Full  or  Ratably.  —  All  charges  and  claims,  whether  pertaining 
to  funeral  or  last  illness,  which  are  of  the  same  legal  degree  of 
preference,  are  to  be  paid  out  on  the  same  footing ;  and  so,  we 
may  assume,  in  advance,  as  to  administration  charges.  And 
where  the  assets  are  not  sufficient  to  pay  all  these  preferred 
claims  in  full,  they  must  with  little  formality  be  divided  ratably  ; ' 
for  the  policy  of  our  law  does  not  favor  declaring  an  estate  in- 
solvent, merely  for  the  sake  of  distributing  assets  among  such 
claimants. - 

§  425.    General    Payment    of    Debts;    Rule    of    Priority.  —  We 

now  come  to  the  general  payment  of  debts  and  demands  against 
an  estate.  Where  the  assets  are  ample  for  the  adjustment  of 
all  claims  in  full,  there  can  be  little  occasion  for  closely  observ- 
ing rules  of  legal  priority  ;  this  priority  denoting,  not  the  time 
for  payment,  but  the  dignity  of  the  claim.  When,  however,  a 
deficiency  occurs,  and  the  estate  is  a  slender  one,  the  executor 
or  administrator  should  regard  such  rules  carefully ;  for,  if  he 
pays  an  inferior  claimant  in  full,  and  leaves  not  enough  after- 
wards to  settle  all  the  superior  claims  which  may  in  due  time 
be  presented,  he  cannot  plead  a  want  of  assets,  but  must  re- 
spond out  of  his  own  estate  ;  ^  and  so  pro  rata  as  to  other  claims 
of  equal  dignity,  for  all  such  should  be  paid  proportionally  alike. 
Generally  speaking,  when  the  estate  of  a  deceased  person 
proves  insolvent  or  insufficient  to  meet  all  the  demands  pre- 
sented, it  shall,  after  discharging  preferred  claims,  be  applied  to 
the  payment  of  his  debts  in  a  prescribed  order  of  classification. 
Tf  there  is  not  enough  to  pay  the  delots  of  any  class,  the  cred- 
itors of  that  class  shall  be  paid  pro  j-ata  ;  and  no  payment  shall 

741.     As  to  a  physician's  statute  prior-  and  the  allowance  of  both  as  one  item, 

ity,  see  50  La.  Ann.  152,  840.  if  to  the  same  claimant,  is  not  invalid. 

'  See  Bennett  v.  Ives,  30  Conn.  329.  Booth  v.  Radford,  57   Mich.  357 ;  Mc- 

But  these  preferred  claims  appear  by  Clellan  v.  Filson,  44  Ohio  St.  184. 

some  codes  to  rank  in  consecutive  order.  Funeral    e.vpenses    are    preferred   to 

Hart  V.   Jewett,    11    Iowa,    276.     And  judgments  unless  the  statute  is  explicit, 

statutes  require  their  timely  presenta-  41  N.  J.  Eq.  244;  cf.  14  Phila.  569. 

tion.     See  Elliott's  Succession,  31   La.  ^  See  post,  §  446. 

Ann.  31.     Funeral  expenses  and  those  ^  2  Bl.  Com.  411  ;   Wms.   Exrs.  989. 
of  last  illness  rank  a>i  a  preferred  claim  ; 

546 


CHAF.  I.]    DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  426 

be  made  to  creditors  of  any  class  until  all  those  of  the  preced- 
ing class  or  classes,  of  whose  claims  the  executor  or  administra- 
tor has  notice,  are  fully  paid.' 

§  426.    Rules  of  Priority;   English  Classes  enumerated. —  Ujlder 

the  English  law,  as  formerly  stated,  ( i )  debts  due  the  crown, 
by  record  or  specialty,  occupy  the  first  class,  these  taking  prec- 
edence of  all  dues  to  a  private  subject.-  (2)  Next  come  mis- 
cellaneous debts  to  which  particular  statutes  accord  a  certain 
precedence.-^  (3)  To  these  succeed  debts  of  record;  among 
which  judgments  or  decrees  rendered  against  the  deceased  are 
preferred  both  to  recognizances,  or  penal  obligations  of  record, 
and  the  now  obsolete  securities  by  statute,  which  were  likewise 
a  sort  of  bond  by  record.^  (4)  Debts  by  specialty  follow,  as  on 
bonds,  covenants,  and  other  instruments  sealed  and  delivered  ; 
under  which  head,  by  construction,  a  debt  for  rent  is  included.^ 
(5)  Last  in  order  come  simple  contract  debts,  or  such  as  are 
founded  in  parol  or  writing,  not  under  seal.^ 

This  enumeration  carries  the  classification  to  an  extreme 
limit.  And  to  pass  over  the  demands  of  the  second  class,  which 
are  of  a  purely  arbitrary  and  exceptional  kind,  those  of  the  third, 
fourth,  and  fifth  classes,  must  needs  provoke  much  controversy. 
Thus,  as  to  the  third  class,  judgments  rendered  against  the 
decedent,  whether  prior  in  point  of  time  or  not,  are  preferred 
to  recognizances  and  statutes  of  that  class,  and  of  course  to  all 
debts  by  specialty  or  simple  contract ;  but  the  judgment  must 

'Mass.     Gen.     Stats,    c.   99;    Wms.  a  deceased  functionary,  the  regimental 

Exrs.  992;  Moore  v.   Ryers,  65  N.  C.  dues  of  a  deceased  officer  or  soldier,  and 

240.     Joint    debts    must  be    paid  pari  claims  of  a   "friendly   society"  on   its 

passu  with  separate  debts.     Pearce  ?'.  deceased    manager,    are   among   those 

Cooke,  13  R.  I.  184.  thus  ranked.     lb.     From  the  language 

^  Wms.   Exrs.   991-993;  2    Inst.   32;  of  some  of  these  statutes,  it  might  be 

Cro.  Eliz.  793  ;  3  Bac.  Abr.  tit.  Exors.  inferred  that  not  even  crown  debts  shall 

L.  2;  (1897)  I  Ch.  673.     Probate  duties  take  precedence.     6  Ves.  99. 

are  by  statute  placed  on  the  footing  of  ■»  Wms.   Exrs.    997-1009,    and   cases 

debts  due  to  the  crown.     Act  55  Geo.  cited;  2  Bl.  Com.  341. 

III.  c.  184;  Wms.  Exrs.  993.  ^  y  (Jq.  88  b;   Wms.  Exrs.  1010-1024. 

'  Wms.   Exrs.   994,  995  ;  6  Ves.  98,  ''  Bac.   Abr.  tit.  Exors.   L.  2 ;  Wms. 

441,  804.     Moneys  owing  the  parish  by  E.xrs.  1025,  1026;  2  Bl.  Com.  511. 

547 


§  426  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

have  been  rendered  in  a  court  of  record ; '  and  the  rank  is  ac- 
corded only  to  domestic  and  not  to  foreign  judgments.''  In 
English  practice,  a  judgment  which  is  entered  against  the  de- 
cedent after  his  decease  happening  between  verdict  and  judg- 
ment, shall  take  priority  like  a  judgment  entered  during  his 
lifetime  ;  for  it  is  the  judgment  which  was  confessed  by  the 
deceased,  or  obtained  by  compulsion  against  him,  to  which  the 
law  assigns  superiority.^  But,  as  respects  a  judgment  rendered 
later,  and  in  fact  standing  of  record  against  the  executor  or 
administrator  himself,  no  such  priority  applies  ;  for,  as  between 
the  representative  and  the  creditor,  the  judgment  must  be  satis- 
fied by  the  representative  out  of  his  own  property,  if  the  estate 
proves  insufficient  ;  while,  as  concerns  the  estate  itself,  the 
creditor  stands  superior  only  to  others  whose  claims  were  of 
equal  degree  with  that  sued  upon,  by  reason  of  his  inferior  dil- 
igence in  prosecuting  it."*  In  order  to  maintain  their  priority 
in  the  administration  of  the  estate,  judgments  against  the  de- 
ceased must,  in  modern  practice,  be  docketed  ;  ^  while,  as  among 
themselves,  neither  the  cause  of  action  nor  the  order  of  docket- 
ing can  give  one  judgment  precedence  of  another.^  A  decree 
in  equity  obtained  against  the  deceased,  is  equivalent  to  a  judg- 
ment at  law,  in  respect  of  priority  in  the  administration  ;  but 
not  if  the  decree  did  not  conclusively  ascertain  a  sum  actually 
due,  but  requu'ed  an  account,  or  related  to  some  collateral  mat- 
ter, such  as  foreclosing  a  mortgage.7  As  for  a  recognizance  or 
security  by  statute,  which,  though  an  obligation  or  bond  of 
record,  is  postponed  to  judgments  of  record  and  decrees,  there 

'  As  to   what    courts    are    courts   of  dingham,  L.  R.  i  Q.  B.  355;  Stat.  23  & 

record,  see  Wms.  Exrs.  997,  998;   Holt  24  Vict.  c.  38;  Fuller  v.   Redman,  26 

V.  Murray,  i  Sim.  485.  Beav.  600. 

=  2    Vern.    540;    Walker   v.    Witter,         ^  Wms.   Exrs.    1004,    174°;    Wentw. 

Dougl.  I  ;  Harris  z/.  Saunders,  4  B.  &.  C.  Off.  Ex.  269,  14th  ed.     But  of  several 

411.  judgment   creditors,  he  who  first   sues 

^  5  Co.  28  b;   Wms.  Exrs.  998,  1740;  out  execution  must  be  preferred,  and 

Burnet  v.    Holden,    i    Mod.  6 ;    Coles-  the    executor   may   elect    to  whom  he 

beck  V.  Peck,  2  Ld.  Raym.  1280.  shall  pay  first.     Wms.  Exrs.  1004. 

*  Wms.   Exrs.  999,    1000;  Ashley  v.         '  Prec.    Ch.    79;    Searle   v.    Lane,    2 

Pocock,  3  Atk.  308.  Vern.  89;  3  P.  Wms.  401  «.  ;  Wilson  z*. 

'  See  various  statutes  enumerated  in  Lady  Dunsany,    18   Beav.    299;  Wms. 

Wms.  Exrs.  998-1003;   Kemp  v.  Wad-  Exrs.  1005. 

548 


CHAI'.    I.]  DEBTS    AND    CLAIMS    i:P0N    THE    ESTATE.  §   427 

must  be  a  record  or  enrollment  in  order  to  place  it  above  spe- 
cialty debts ;  independently  of  which  formality,  it  should  rank 
among  them." 

§  427.  The  Same  Subject.  —  As  between  specialty  and  simple 
contract  debts,  under  the  foregoing  classification,  it  is  not  the 
mere  recital  in  a  deed,  but  the  obligation  operating  by  force  of 
undertakings  in  an  instrument  under  seal  which  entitles  the 
specialty  debt  to  priority.^  And  where  one  who  was  bound  with 
the  deceased,  as  surety  or  co-obligor,  pays  the  bond,  his  claim 
upon  the  estate  is  held  to  be  only  that  of  a  simple  contract  cred- 
itor, inasmuch  as  the  specialty  itself  has  been  paid  off  ;  ^  a  legal 
refinement  not  commended  by  American  courts,  discarded  by  a 
late  English  statute,  and  admitted  to  have  no  force  where  the 
original  bond  still  subsists. ■»  A  demand  founded  in  a  broken 
covenant,  is  a  specialty  debt,  whether  it  be  for  damages  merely, 
or  some  specific  sum  ;  ^  and  breaches  of  trust  may  be  similarly 
regarded  when  committed  by  violation  of  the  terms  of  the  sealed 
instrument, *"  though  not  necessarily  when  conveyance  was  made 
by  deed  to  a  trustee  without  covenant  on  his  part.^     Debts  by 

'  Bothomly   v.    Fairfax,    i    P.    Wms.  Sen.  313;   Robinson's  Executor's  Case, 

334  ;  Bac.  Abr.  Execution ;  Wms.  Exrs.  6  De  G.  M.  &  G.  572. 

1006-1010.  3  CopLs   V.  Middleton,   i  Turn.  &  K. 

When  t-wo  are  bound  jointly  andsev-  224;   Priestman  v.  Tindal,  24  Beav.  244. 

erally,  and  upon  the  death  of  one  the  "i  19  &  20  Vict.  c.  97,  §  5  ;   Wms.  Exrs. 

other  becomes  his  executor,  the  latter  1013,  1014  ;  Ware,  Ex  parte,   5   Rich. 

may    discharge   the    bond   out    of   the  Eq.  473  ;  Drake  v.  Coltraine,  Busb.  L. 

estate  of  the  former;  and  it  has  not  300;   Howell  v.   Reams,  73  N.  C.  391; 

been  uncommon  in  England,  when  one  Hodgson  &.  Shaw,  3  M.  &  K.  183.     The 

man  is  surety  for  another,  for  the  surety  sum  due  on  an  administration  bond  is 

to  be  constituted  executor  of  the  prin-  not  a  specialty  debt  due  to  the  adminis- 

cipal,  that   his  indemnity  may  be  the  trator  de  bonis  noii.     Parker  v.  Young, 

better  secured.     Rogers  v.  Danvers,  i  6  Keav.  261. 

Freem.  128.     But  if  the  deceased  was  ^  Plumer  v.  Marchant,  3  Burr.  1380; 

bound  by  a  purely  joint  obligation,  the  Broome  v.  Monck,  10  Ves.  620 ;  Pow- 

survivor   alone  would  continue  liable,  drell  v.  Jones,  2  Sm.  &  G.  305 ;  Wms. 

Rogers    v.    Danvers,    i     Freem.     128;  Exrs.  1017. 

Richardson   v.    Horton,   6    Beav.    185.  ^  Cas.    temp.    Palb.    109;  Benson  v. 

Equity  does  not  favor  such  construe-  Benson,    i    P.    Wms.    130;  Turner   v. 

tion,  but  rather  that  a  joint  and  several  Wardle,  7  Sim.  80. 

bond  was  intended.  '  As    a    rule,  it    would  appear   that 

^  Ivens  2/.  Elwes,  3  Drew.  25;  Wms.  breach  of  trust  can  constitute  no  spe- 

Exrs.  1012;  Lacam  v.  Mertins,  i   Ves.  cialty  debt,  where  the  tru.stee  has  not 

549 


v^   42cS  EXECUTORS    AND    AnMINISTRATORS.  [PART  V. 

mortgage  rank  also  with  specialty  debts,  where  there  is  a  bond 
or  covenant  for  the  payment  of  money  ;  otherwise,  they  consti- 
tute only  a  simple  contract  debt  with  security.'  Debts  by  spe- 
cialty, due  at  some  future  day,  take  priority  of  debts  by  simple 
contract,  since  provision  should  be  made  for  them  ;  but  obliga- 
tions of  indemnity  or  other  contingent  debts  by  specialty,  which 
may  never  become  payable  at  all,  cannot  thus  obstruct  debts 
actually  due  of  an  inferior  rank  ; "  though  where  the  contingency 
hapjx'ns  by  breach  of  the  condition,  the  security  will  stand  like 
other  specialty  debts  as  to  assets  then  existing.-^  Finally,  simple 
contract  debts  embrace  all  which  are  founded  in  parol  and  written 
engagements  not  under  seal,  including  sums  due  on  bills  and 
])romissory  notes,  and  transactions  by  word  of  mouth.'' 

Such  was  the  dissatisfaction  in  later  times  upon  these  pref- 
erential distinctions  between  the  specialty  and  simple  contract 
debts  of  deceased  persons,  that  Parliament  interfered,  a  few 
years  ago,  with  an  act  abolishing  all  such  priorities. 5 

i^  428.   Rules  of  Priority  ;   American  Classes  enumerated.  —  The 

American  rules  of  priority  among  claimants,  like  those  relating 
to  the  insolvent  estates  of  deceased  persons,  are  fixed  by  local 
statutes  by  no  means  uniftn'm.  l^ut,  in  most  parts  of  the  United 
States,  the  disposition  has  been  to  reduce  the  classification  of  a 
deceased  person's  debts  to  the  simplest  system  possible  ;  thereby 
avoiding  the  close  discriminations  just  noticed.  Indeed,  we 
may  ascribe  in  part  the  new  English  statute  32  &  33  Vict.  c.  46, 

executed  the  deed.    Wnis.   Exrs.    1020;  January  i,  1870;   Wms.   Exrs.  preface, 

Richardson  7'.  Jenkins,  i  Drew.  477.  loii.     The  priority  of  judgment  cred- 

'3  Lev.  57  ;  Cro.  Eliz.  31  5.  itors,  however,  is  still  recognized.    Smith 

^  See  Wms.  Exr.s.  1022-1025;  Atkin-  z'.  Morgan,  L.   R.  5  C.  P.  D.  337.     See 

son  z:  Grey,  i  Sm.  &  G.  577  ;  Collins  z'.  Shirreff  ?'.  Hastings,  25  W.  R.  842,  as  to 

Crouch,  I  3  Q.  B.  542.  debts  under  a  lease.     For  the  right  of 

^  Cox  T'.  Joseph,  5  T.  R.  307  ;   Wms.  retainer  under  this  act,  see  §  439  ;  31  Ch. 

Exrs.  1024;  Mu.sson  7'.  May,  3  Ve.s.  &  B.  D.   440,     And   in   Hankey   AV,    (1899) 

194.  541,  theact  is  distinctly  construed  as  not 

*  Wms.  Exrs.  1025,  1026.  permitting  simple  contract  creditors  to 

'  See  Stat.  32  &  23  Vict.  c.  46,  which  be  paid  in  full  to  the  prejudice  of  spe- 

places   specialty    and    simple    contract  cialty  creditors,  where  the  estate  proves 

creditors  on  an  eciual  footing  as  to  the  insolvent. 

estates  of  all  persons  dying  on  and  after 


CHAP.    I.]         DEBTS    AND    CLAIMS    UPON    THE    ESTATE. 


§428 


to  the  force  of  American  example  ;  for  the  general  tendency  in 
the  United  States  has  long  been  to  rank  specialty  and  simple 
contract  debts  (with,  perhaps,  judgment  debts  besides)  upon 
one  and  the  same  equal  footing.'  Nor  do  claims  for  rent  ap- 
pear to  have  been  greatly  regarded  in  this  country  as  entitled  to 
a  preferred  rank,  because  of  the  incident  of  land  tenure  alone. - 
Taxes  only  have  the  decided  preference  accorded  in  the  several 
States  ;  these  claiming  the  usual  favor  of  public  dues ;  and 
debts  entitled  to  a  preference,  under  the  laws  of  the  United 
States,  taking  precedence  of  State  taxes.^  Special  preferences 
are  seldom  favored  in  our  probate  legislation. 


'  2  Kent  Com.  418,  419;  cases  cited 
post. 

^  Cooper  V.  Felter,  6  Lans.  485.  As 
to  rent  due  for  a  pew,  see  Johnson  v. 
Corbett,  11  Paige,  265.     But  cf.  159  111. 

3"- 

3  Under  our  federal  constitution,  the 
United  States  has  the  right  to  establish 
uniform  laws  on  the  subject  of  bankrupt- 
cies ;  a  right  which  has  been  occasion-- 
ally,  but  not  regularly,  exercised.  More- 
over, the  laws  of  the  United  States 
control  all  State  laws  as  concerns  the 
federal  priority.  United  States  v.  Dun- 
can, 4  McLean,  607  ;  Beaston  v.  Farm- 
ers' Bank,  12  Pet.  102.  In  practice. 
Congress  requires  .simply  that  debts  due 
from  the  deceased  to  the  United  States 
shall  first  be  satisfied,  where  the  estate 
is  insufficient  to  pay  all  debts  due  from 
the  deceased.  This  priority  of  the 
United  States  extends  of  right  only  to 
net  proceeds,  after  the  necessary  charges 
of  administration,  etc.,  have  been  paid; 
it  is  a  priority  as  among  creditors. 
United  States  v.  Eggleston,  4  Sawyer, 
199.  It  includes  the  indebtedness  of  an 
indorser.  United  States  v.  Fisher,  2 
Cr.  358.  The  estate  of  a  deceased 
surety,  on  a  bond  given  to  the  United 
States,  settling  with  the  United  States, 
shall  be  subrogated  to  its  rights  as  con- 
cerns the  estate  of  the  deceased  princi- 
pal.    U.  S.  Rev.  Stats.  §  3468.     Taxes, 

55 


on  real  estate,  paid  for  the  convenience 
of  heirs,  are  sometimes  allowable  in  ac- 
counts, but  not  taxes  assessed  after 
partition  at  all  events.  77  Va.  820. 
When  an  administrator  does  not  need 
the  lands  of  his  intestate  for  the  pay- 
ment of  debts,  it  is  not  his  duty  to  pay 
the  taxes  thereon.  Reading  v.  Wier, 
29  Kan.  429.  Taxes  on  the  land,  water- 
rates,  etc.,  charged  before  the  owner's 
decease,  may  be  properly  paid  by  the 
administrator,  but  not  usually  those  ac- 
cruing aftei-wards.  13  Phila.  262,  289; 
3  Dem.  369  ;  88  Ga.  364.  A  personal 
tax  is  a  proper  debt  for  payment  from 
a  decedent's  estate.  Jefferson's  Estate, 
35  Minn.  296  ;  139  Mo.  582 ;  73  Cal. 
545.  Taxes  against  the  decedent  should 
be  paid  at  once  after  the  funeral  ex- 
penses, regardless  of  claims  proved  and 
presented.  63  Md.  465.  Municipal 
taxes  paid  in  good  faith  and  fairly, 
though  afterwards  declared  unconstitu- 
tional or  irregular,  should  be  allowed. 
39  N.  J.  Eq.  258;  20  Fla.  292.  Unpaid 
county  taxes  are  in  some  codes  iitferior 
to  taxes  due  the  State,  to  widow's  al- 
lowances, etc.  69  Ga.  326.  And  see 
97  Iowa,  420.  As  to  alimony  claim,  see 
122  Cal.  462. 

Debts  "  due  to  the  public "  have 
sometimes  a  priority  accorded  by  stat- 
ute, though  not  over  liens  general  or 
.special.     Baxter  v.  Baxter,  23  S.  C.  114. 


§428 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


The  American  rule  '   appears  to  be  to  consider  the  rights  of 
creditors  as  fixed  at  the  debtor's  death,  according  to  their  due 


'  Thus,  the  rule,  as  laid  down  by  the 
legislature  of  Massachusetts,  contem- 
plates three  classes  in  the  following 
order:  (i)  Debts  entitled  to  a  prefer- 
ence under  the  laws  of  the  United 
States ;  (2)  Public  rates,  taxes,  and  ex- 
cise duties;  (3)  Debts  due  to  all  other 
persons.  Mass.  Gen.  Stats,  c.  99.  In 
New  York,  on  the  other  hand,  the  sys- 
tem is  not  so  simple,  for  there  are  four 
classes  of  debts,  viz :  (i)  Debts  entitled 
to  a  preference  under  the  laws  of  the 
United  States;  (2)  Taxes  assessed  upon 
the  estate  of  the  deceased  previous  to 
his  death  ;  (3)  Judgments  docketed  and 
decrees  enrolled  against  the  deceased 
according  to  the  priority  thereof,  re- 
spectively ;  (4)  All  recognizances,  bonds, 
sealed  instruments,  notes,  bills,  and 
unliquidated  demands  and  accounts. 
2  N.  Y.  Rev.  Stats.  87,  §  27.  As  to  the 
priority  of  docketed  judgments,  etc., 
under  this  statute,  see  Trust  v.  Harned, 
4  Bradf.  (N.  Y.)  213;  Ainslie  v.  Rad- 
cliff,  7  Paige,  439  ;  McNulty  v.  Hurd, 
18  N.  Y.  Supr.  339.  This  priority  takes 
effect  without  reference  to  any  lien  of 
such  judgments  or  decrees  upon  real 
estate.  Ainslie  v.  Radcliff,  ib.  The 
judgment  must  have  been  perfected 
during  the  life  of  the  debtor.  Mitchell 
V.  Mount,  31  N.  Y.  356;  62  Minn.  135. 
Priority  of  payment  among  debts  be- 
comes, therefore,  in  our  several  States, 
a  matter  of  local  construction  as  con- 
cerns local  and  independent  statutes 
relating  to  this  subject.  See  Hart  v. 
Jewett,  II  Iowa,  276;  Titterington  v. 
Hooker,  58  Mo.  593  ;  Pugh  v.  Russell, 
27  Gratt.  789;  62  Minn.  135. 

Debts  preferred  as  "  due  to  the  pub- 
lic "  do  not  include  debts  due  to  a  State 
bank.  Bank  v.  Gibbs,  3  McCord,  377  ; 
Fields  V.  Wheatley,  1  Sneed,  351 ;  Cen- 
tral Bank  v.  Little,  1 1  Ga.  346.  Taxes 
or  public    dues  are   in    various  States 

55 


accorded  a  priority  so  great  that  they 
may  be  sued  upon  specially,  though 
the  estate  be  pronounced  insolvent. 
Rulfinch  V.  Benner,  64  Me.  404.  And 
see  Bowers  v.  Williams,  34  Miss.  324  ; 
2  Vt.  294.  But  the  taxes  thus  payable 
are  those  primarily  which  the  decedent 
was  owing  at  his  death.  Later  taxes 
follow  the  rvile  of  the  statute  imposing 
them ;  but  a  representative  should  not 
pay  an  assessment  upon  land  which  the 
heir  or  devisee  should  discharge;  nor 
encumber  personal  assets  with  charges 
that  do  not  properly  fall  upon  them, 
nor  the  w'hole  personal  estate  with  taxes 
which  concern  specific  chattels.  See 
Lucy  V.  Lucy,  55  N.  H.  9;  Deraismes 
V.  Deraismes,  72  N.  Y.  154.  Taxes 
duly  imposed  by  the  State  upon  assets 
require  no  presentment  for  allowance. 
119  Mo.  661. 

In  vaiious  States,  the  English  classi- 
fication has  been  more  closely  followed, 
under  statutes  now  or  formerly  in  force, 
though  the  general  policy  is  that  indi 
cated  in  the  text.  Hence  are  found 
numerous  American  decisions  as  to 
priority,  some  of  which  may  here  be 
stated  for  comparison  with  the  English 
decisions  cited  under  that  head. 

I.  Judgments.  —  Judgment  creditors 
(except  for  those,  as  under  the  New 
York  statute,  whose  judgments  have 
been  docketed  against  the  deceased 
before  his  death),  in  general  retain,  in 
this  country,  the  rank  that  would  be- 
long to  their  several  causes  of  action 
before  judgment.  lidderdale  i7.  Robin- 
son, 2  Brock.  159.  And  by  the  com- 
mon law  one  judgment  was  not  entitled 
to  preference  over  another  if  both  were 
docketed  at  the  debtor's  death,  unless 
a  judgment  creditor  obtained  a  prefer- 
ence by  proceedings  subsequent  to  such 
death.  Ainslie  7'.  Radcliff,  7  Paige, 
439.  In  marshalling  assets,  a  dormant 
2 


CHAP.    1. 


DEBTS    AND    CLAIMS    UPON    THK    ESTATE. 


§428 


rank;  so  that  no  one  shall,  by  superior  diligence  or  by  pref- 
erential dealings  with  the  executor  or  administrator,  or  by  push- 


judgment  is  held  to  rank  with  bonds 
and  other  obligations  in  some  States. 
Williams  z-.  Price,  21  Ga.  507  ;  State  i'. 
Johnson,  7  Ired.  L.  231.  And  see 
Carnes  v.  Crandall,  4  Iowa,  151.  The 
priority  of  judgments  over  specialty  and 
simple  contract  debts  was  formerly 
recognized  in  Kentucky.  Place  v.  Old- 
ham, 10  B.  Mon.  400.  As  to  the  statute 
preference  of  "judgments,  mortgages, 
and  executions,"  see  Bomgaux  v.  Bevan, 
Dudley  (Ga.)  110;  Commissioners  v. 
Greenwood,  i  Desau.  450.  A  State 
may  prefer  its  own  judgments  to  those 
of  other  States.  Harness  v.  Green,  29 
Mo.  316;  Jones  v.  Boulware,  39  Tex. 
367.  Cf.  Gainey  v.  Sexton,  29  Mo.  449  ; 
Brown  v.  Public  Administrator,  2  Bradf. 
(N.  Y.)  103.  Judgment  by  a  justice  of 
the  peace  is  of  superior  dignity  to  a 
bond  or  note;  but,  not  being  matter  of 
record,  actual  notice  should  be  given  to 
the  legal  representative.  State  z'.  John- 
son, 7  Ired.  L.  231.  Judgment  entered 
after  the  defendant's  death,  upon  ver- 
dict rendered  during  his  life,  takes  full 
priority.  Miller  v.  Jones,  2  Rich.  393. 
The  judgment  passes  to  one  subrogated 
to  the  rights  of  the  original  creditor, 
with  all  its  original  privileges  and  in- 
firmities. Partee  v.  Mathews,  53  Miss. 
140.  As  to  statutes  taking  away  this 
preference  and  their  effect,  see  Deich- 
man's  Appeal,  2  Whart.  395 ;  Place  v. 
Oldham,  10  B.  Mon.  400;  Worthley  v.- 
Hammond,  13  Bush,  510.  Concerning 
a  judgment  upon  a  tort  which  dies  with 
the  person,  see  Hammond  v.  Hoffman, 
2  Redf.  (N.  Y.)  92.  And  as  to  judg- 
ments recovered  after  a  fraudulent 
assignment  of  property  by  the  debtor, 
see  Le  Prince  v.  Guillemot,  i  Rich. 
187.  See  also  Davis  71.  Smith,  5  Ga. 
274;  Coates  V.  Muse,  i  Brock.  557; 
Coltraine  ?'.  Spurgin,  9  Ired.  L.  52 ; 
Eddins  v.  Graddy,  28  Ark.  500. 

55 


Generally,  in  the  United  States, 
where  a  judgment  is  not  a  lien  on  the 
defendant's  land  at  the  time  of  his 
death,  the  creditor  can  only  collect  his 
debt  in  the  due  course  of  administra- 
tion, and  his  judgment  has  no  preference 
or  priority  over  any  other  creditors  hold- 
ing ordinary  demands.  Clingman  z'. 
Hopkie,  78  111.  152;  Keith  v.  Parks,  31 
Ark.  664.  Judgment  liens  on  real  estate 
are  settled  in  the  order  of  their  priority. 
Kerr  r'.  Wimer,  40  Mo.  544.  But  un- 
der the  New  York  code  it  is  otherwise. 
Sicpra,  p.  552 ;  Ainslie  v.  Radcliff,  7 
Paige,  439.  A  judgment  recovered 
against  the  executor  of  an  executor  who 
had  died  pending  a  suit  against  him  to 
recover  misappropriated  moneys  is  not 
to  be  preferred  above  the  claims  of 
creditors  generally.  Fox's  Estate,  92 
N.  Y.  93.  Docketed  judgments  in 
North  Carolina  take  effect  as  liens  ac- 
cording to  their  priority  of  date  at  the 
decedent's  death.  87  N.  C.  428.  But 
a  judgment  against  the  representative 
does  not  determine  the  rank  of  the 
claim.     23  S.  C.  373. 

II.  Specialty  Debts.  —  In  some  Ameri- 
can codes,  certain  specialties — e.g. 
mortgages  —  have  been  accorded  a  prior 
rank  with  judgments.  Moore  v.  Dortie, 
2  Ga.  Dec.  84.  A  specialty  debt  due  a 
citizen  is  to  be  preferred,  in  certain 
States,  to  a  simple  contract  debt  owing 
the  State.  Commonwealth  v.  Logan, 
I  Bibb,  529.  And  see  Commissioners 
V.  Greenwood,  i  Desau.  450.  Agree- 
ment not  under  seal  to  execute  a  bond 
does  not  rank  as  a  specialty  debt. 
Johnson  v.  Slawson,  1  Bailey  Ch.  463. 
And  see  Smith  v.  Smith,  2  Hill  (S.  C.) 
Ch.  1 12. 

III.  Simple  Contract  Debts.  —  These, 
in  some  American  codes,  are  postponed 
to  .specialty  debts.  Webster  ->.  Ham- 
mond,  3   liar.   &  M.   (Md.)    i;,i.     Bui 

3 


§428 


EXECUTORS    AND    ADMINISTRATORS. 


[part 


ing  his  suit  to  judgment,  get  an  advantage  over  the  others.' 
Nor  are  distinctions  favored  between  legal  and  equitable  cred- 
itors, or  legal  and  equitable  assets  for  satisfying  their  claims.* 


not  generally,  as  we  have  stated.  See 
Heath  -•.  Belk,  1 2  S.  C.  5S2.  Some  codes 
charge  the  estate  of  a  deceased  person,  so 
as  to  make  the  wages  due  servants  and 
operatives  a  preferred  claim.  Everett  <•. 
Aver)-,  19  Mo.  136  ;  Martin's  Appeal,  35 
Penn.  St.  395 ;  Gaines  z/.  Del  Campo,  30 
La.  Ann.  245.  See  also  56  Kan.  281. 
It  would  appear,  by  the  better  authority, 
that  the  common  law  accords  no  such 
preference.  See  Wms.  Exrs.  1025,  com- 
menting upon  2  Bl.  Com.  511,  and  i 
Roll.  Abr.  927.  And  see  Davis  v. 
Davis,  49  Vt.  464.  The  claim  upon  an 
estate  which  grows  out  of  a  defective 
title,  but  is  founded  in  no  covenant  or 
undertaking  under  seal,  stands  only 
as  a  simple  contract  debt.  Laws  v. 
Thompson,  4  Jones  L.  104.  "  Liqui- 
dated demands "  are  sometimes  dis- 
tinguished in  our  codes  from  "  unliqui- 
dated," as  to  mode  of  proof  or  other^vise. 
McNulty  V.  Pruden,  62  Ga.  1 35. 

'  Bosler  v.  Exchange  Bank,  4  Penn. 
St.  32 ;  McClintock's  Appeal,  29  Penn. 
St.  360;  Allison  V.  Davidson,  i  Dev. 
&  B.  Eq.  46 ;  Boyce  v.  Escofifie,  2  La. 
Ann.  872 ;  Lidderdale  v.  Robinson,  2 
Brock.  159.  And  see  statutes  noticed, 
post,  which  give  the  representative  time 
to  examine  into  the  condition  of  the 
estate  before  creditors  can  sue  him. 

^  Sperrj',  Estate  of,  i  Ashm.  347. 
But  cf.  Jones  v.  McCleod,  61  Ga.  602. 
An  administrator,  having  assets  in  his 
hands,  who  fails  to  pay  oiY  a  judgment 
rendered  against  him  as  administrator, 
becomes  personally  liable.  Jeeter  v. 
Durham,  6  J.  J.  Marsh.  228.  Penalties 
incurred  by  the  deceased,  under  a  con- 
tract made  by  him  while  Hving,  must  be 
paid.  Atkins  v.  Kinnah,  20  Wend. 
241.  Or  obligations  as  a  surety.  Berg 
V.   Radcliff,  6  Johns.  Ch.  302.     Under 

55 


Connecticut  statute  the  indorsee  of  a 
promissory  note  is  creditor  of  the  estate ; 
not  the  indorser.  Meriden  Steam  Co. 
V.  Guy,  40  Conn.  163.  As  to  allowing 
an  indorsement  as  a  contingent  claim, 
see  Curley  v.  Hand,  53  Vt.  524. 

The  claim  against  one's  estate  for  a 
balance  due  as  fiduciary  of  an  estate, 
such  as  an  administrator,  trustee,  guar- 
dian or  attorney,  is,  in  some  States, 
treated  as  of  special  dignity.  Johnson  v 
Brady,  24  Ga.  131  ;  Curie  v.  Curie,  9  B 
Mon.  309  ;  Smith  v.  Blackwell,  31  Gratt 
291;  Watson  V.  Watson,  i  Ga.  266 
Smith  -.Ellington,  14  Ga.  379;  Caruth 
ers  V.  Corbin,  38  Ga.  75  ;  Wilson  v 
Kirby,  88  111.  566.  But,  by  the  usual 
rule,  breach  of  trust,  unless  founded  in  a 
specific  specialty,  constitutes  only  a 
simple  contract  debt.  Carow  v.  Mo- 
watt,  2  Edw.  (N.  V.)  57  ;  supra,  §  427  ; 
Rolair  v.  Darby,  i  McCord  (S.  C.)  Ch. 
472.  See,  further,  Muldoon  v.  Craw- 
ford, 14  Bush.  125;  Van  Duzer,  Matter 
of,  51  How.  (N.  v.)  Pr.  410. 

Whether  the  creditor  of  a  firm  should 
pursue  the  surviving  partner,  before  en- 
forcing his  claim  against  the  estate  of 
the  partner  deceased,  see  Dubois'  Case, 
3  Abb.  (N.  Y.)  Pr.  177.  But  individual 
creditors  can  insist  on  the  full  payment 
of  their  debts,  from  the  decedent's  es- 
tate, before  the  allowance  of  partner- 
ship debts  from  the  individual  assets. 
People  V.  Lott,  36  111.  447  ;  Higgins  v. 
Rector,  47  Tex.  361.  The  balance  due 
to  the  surviving  partner  on  adjustment 
of  accounts  is  a  proper  claim.  Babcock 
V.  LilHs,4  Bradf.  (N.  V.)  218. 

The  power  of  the  probate  court  to 
re-classify  and  change  its  order,  in  States 
where  such  classification  devolves  upon 
the  court,  is  sometimes  denied.  Cor- 
sitt  V.  Biscoe,  12  Ark.  95.     It  cannot 

4 


CHAP.  I.]    DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  43O 

§  429.  Claims  grounded  in  a  Tort ;  Damages,  etc. ;  Contingent 
Claims ;  How  ranked.  —  As  torts  died  with  the  person  at  com- 
mon law,  claims  of  this  character  were  not  in  earlier  times  con- 
sidered in  connection  with  the  settlement  of  estates.  But  suits 
growing  out  of  a  tort,  which  do  not  thus  abate  in  modern  prac- 
tice, of  which  there  are  numerous  instances,  may  pass  sometimes 
to  judgment ; '  though  statutes  are  found  which  expressly  de- 
clare the  rank  such  claims  shall  occupy.^  Breaches  of  trust, 
unless  committed  in  breach  of  some  sealed  instrument,  are  re- 
garded as  simple  contract  debts  ;  ^  though,  as  we  have  seen,  a 
broken  bond  or  covenant  serves  as  the  foundation  of  a  specialty 
debt.4 

Contingent  claims,  or  such  as  are  not  absolute  or  certain,  are 
found  specially  provided  for  in  local  codes  for  the  presentment 
and  settlement  of  claims  against  a  decedent's  estate.^ 

§  430.    Mortgage  Debts ;   Rights   of   Creditors   having   Security- 

—  A  mortgage  debt,  notwithstanding  a  real  estate  security,  is 
payable  out  of  the  personal  assets  of  the  deceased  on  the  usual 
principles.^  A  personal  covenant  in  a  mortgage  will  bind  the 
mortgagor's  personal  estate  after  his  death. ='  In  case  the  de- 
be  changed,  after  the  assets  have  been  ^  2  Atk.  119;  Bailey  z'.  Ekins,  2  Dick. 
exhausted,  in  conforming  to  the  first  632  ;  Wms.  Exrs.  1018. 
decree  ;  but,  if  erroneous,  the  classifica-  •*  Supra,  §  427  ;  Cas.  temp.  Talb.  109. 
tion  should  be  appealed  from  when  All  such  claims  shcfuld  be  presented 
made.  Nelson  z/.  Russell,  15  Mo.  356.  according  to  the  usual  rules.  Halleck, 
Or  motion  may  be  made  by  the  ag-  Estate  of,  49  Cal.  iii.  Statutes  some- 
grieved  creditor  for  a  correction  tunic  times  give  these  claims  a  preference. 
pro  tunc,  but  not  by  injunction  against     Supra,  §  428,  «. 

the    representative.      Jillett    v.    Union         =  72  Minn.  232.     But  a  subsisting  de- 
Nat.  Bank,  56  Mo.  304.  mand  which  had  matured  and  was  cap- 

'  See  supra,  §  282;  Smith  v.  Sher-  able  of  enforcement  while  decedent  was 
man,  4  Cush.  408.  alive  is  not  contingent.     52  Neb.  532  ; 

^  Thus,  the  important  English  statute,  Sargent  v.  Kimball,  37  Vt.  321.  See 
3&4  Wm.  IV.  c.  42,  which  permits  dam-     158  Mass.  418. 

ages  to  be  recovered  for  injuries  done  *  Howel  v.  Price,  i  P.  Wms.  291  ; 
by  the  deceased  to  the  real  or  personal  Sutherland  v.  Harrison,  86  111.  363; 
property  of  another,  directs  that  the  Mahoney  v.  Stewart,  123  N.  C.  106. 
damages  recovered  shall  be  paid  in  like  But  as  to  exonerating  the  real  estate  by 
order  of  administration  as  simple  con-  the  personal,  see  post.  Part  V'l.  c.  i. 
tract  debts.  Wms.  Exrs.  1026.  See  Ham-  '  Dennis  v.  Sharer,  56  Mich.  224. 
niond  V.  Hoffman,  2  Redf.  (N.  V.)  92. 

555 


§  430 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


ceased  mortgagor  was  not  seized  of  the  mortgaged  propert}-  at 
the  time  of  his  death,  the  mortgagee  has  his  choice,  either  to 
rely  upon  such  property,  or  resort  to  the  decedent's  estate  for 
payment.'  But,  where  the  personal  estate  of  a  deceased  debtor 
is  distributed  among  his  creditors,  it  is  held  that  a  creditor, 
who  has  security  upon  another  fund  which  is  primarily  liable, 
should  be  compelled  to  exhaust  his  remed)-  against  that  fund, 
and  come  in  against  the  personal  estate  for  the  deficiency  only.^ 
And  an  administrator  or  executor  has  no  right  to  redeem  prop- 
erty for  the  benefit  of  the  widow,  at  the  cost  of  an  insolvent 
estate,  nor  in  general  to  discharge  incumbrances  by  mortgage, 
pledge,  or  lien,  on  his  sole  responsibility,  and  without  judicial 
order,  where  the  estate  is  likely  to  derive  no  advantage  from  the 
act,  but  rather  the  reverse.^ 

Lien,  mortgage,  and  pledge  creditors,  in  general,  take  the 
full  benefit  of  their  security,  notwithstanding  the  death  of  the 
debtor ;  and  may  apply  such  security  in  discharge  of  their  re- 


'  Rogers  v.  State,  6  Ind.  31.  See 
W  hitmore  v.  San  Francisco  Sav.  Union, 
50  Cal.  145.  Where  real  estate  mort- 
gaged by  the  testator  will  probably  be- 
insufficient  on  foreclosure  to  pay  the 
mortgage  debt,  the  surrogate  or  probate, 
judge  may  direct  the  executor  or  admin- 
istrator to  reserve  enough  from  the  as- 
sets to  meet  the  deficiency,  in  the  same 
proportion  as  for  other  debts  of  the 
same  degree.  Williams  v.  Eaton,  3 
Kedf.  (N.  Y.)  503. 

-  Thus,  where  land  was  sold  subject 
to  a  mortgage,  which  the  purchaser 
covenanted  to  pay  or  assume,  the  pur- 
chase-money being  lessened  in  amount 
accordingly,  the  mortgaged  premises 
should  be  treated  as  the  primary  fund 
for  payment  of  that  debt.  Halsey  v. 
Reed,  9  Paige,  446.  Where  the  execu- 
tor or  administrator  sells  property  in- 
cumbered by  a  mortgage,  the  claim  of 
the  mortgagee  must  be  satisfied  out  of 
the  security  before  the  residue  can  be 
held  for  administration  expenses,  or  the 

5 


claims  of  general  creditors ;  and  only 
the  expenses  of  the  sale  take  precedence. 
Murray,  Estate  of,  18  Cal.  686  ;  Murphy 

.  V.  Vaughan,  55  Ga.  361.  But  cf.  Alter 
V.    O'Brien,    31    La.    Ann.    452.     If   a 

,  mortgagee  does  not  present  his  claim 
within  the  limited  time  for  presentment 
and  the  e.state  is  settled,  his  right  to 
enforce  the  mortgage  is  not  affected. 
Smith  V.  Gillam,  80  Ala.  296.  But  he 
loses  all  right  to  hold  the  decedent's 
estate  for  a  deficiency.  Willard  v.  Van 
Leeuwen,  56  Mich.  1 5.  See  as  to  equity 
proceedings  in  foreclosing  a  mortgage 
where  the  deficiency  was  treated  as  a 
valid  claim  against  assets,  Shelden  v. 
Warner,  59  Mich.  444. 

3  Rossiter  v.  Cossitt,  15  N.  H.  38 ; 
Ashurst  V.  Ashurst,  13  Ala.  781  ;  Shaw, 
C.  J.,  in  Ripley  v.  Sampson,  10  Pick. 
373;  j«/;-rt,  §  318.  As  to  discharging 
a  debt  secured  by  vendor's  lien,  see 
Mullins  V.  Yarborough,  44  Tex.  14. 
And  see  Slack  v.  Emery,  30  N.  J.  Eq. 
458. 

56 


CHAP.  I.]    DEBTS  AM)  CLAIMS  UPON  THE  KSTATE.       §  43O 

spective  claims,  under  the  usual  rules  and  reserving  the  usual 
equities.  Thus,  a  solicitor  or  attorney  has  a  particular  lien  ;  so, 
too,  has  a  bailee  for  hire,  or  the  workman  upon  a  certain  thing,' 
or  a  banker  for  his  adx'ances.- 

So  far  as  pursuing  all  such  rights  against  the  estate  is  con- 
cerned, modern  codes  and  practice  often  permit  the  secured 
creditor  either  to  realize  his  security  or  have  it  valued  ;  and 
where  he  elects  to  value,  he  can  only  prove  for  the  balance  of 
his  claim  less  the  valuation.'  The  security  or  securities  are  of 
course  available  by  way  of  preference,  in  accordance  with  the 
usual  legal  doctrines,  and  the  creditor  is  not  obliged  to  resort 
to  the  general  assets  like  general  creditors.*  If,  after  realizing 
upon  the  security,  a  balance  remains  due  to  the  secured  cred- 
itor, his  claim  for  such  balance  stands  on  no  better  footing  than 
that  of  unsecured  creditors  ;  and,  if  assets  are  deficient,  he 
should  be  paid  proportionably  with  them. 5  And,  in  general, 
claims  secured  by  mortgage,  pledge,  or  lien,  are  no  exception  to 
the  rule  which  requires  personal  demands  to  be  presented  and 
proved  or  sued  upon,  within  a  specified  time,  or  else  to  be  barred 
as  against  the  estate.*^  Collateral  security,  given  by  the  execu- 
tor or  administrator  for  a  debt  due  from  the  deceased,  cannot 
operate  so  as  to  place  the  creditor  in  a  better  situation  against 


'  Lloyd    V.    Mason,    4     Hare,    132;  incumbrance.     Tuttle  v.   Robinson,  t,t, 

Schoul.  Bailm.  §§  122-127.  N.  H.  104. 

^  Leonino  ?'.  Leonino,   L.   R.   10  Ch.         -  The  rule  for  such  creditors  is  fre- 

D.  460.  cjuently  defined   by  the   local    statute. 

^  Williams  7k  Hopkins,  29  W.  R.  767  ;  See  Martin  ?'.  Curd,  i  Bush,  327  ;  Wil- 

McClure  z>.  Owens,  32  Ark.  443.  liams  v.  Hopkins,  supra  ;  WilHams  v. 

^  As  among  different  securities,  real  Eaton,  3  Redf.  (N.  Y.)  503 ;  Moring  v. 

and  personal,  a  pro  rata  contribution  Flanders,  49  Ga.  594.     A  vendor's  lien 

may  be  proper  in  conformity  to  the  con-  for  unpaid  purchase-money  is  not  a  pre- 

tract.     Leonino  v.   Leonino,   L.   R.   10  ferred   claim.     Kimmell    v.    Burns,    84 

Ch.  D.  460.     The  duty  of  the  executor  Ind.  370. 

or  administrator  to  redeem  property  of         ^  Clark  -'.  Davis,  32  Mich,  i  54 ;  Pitte 

the  deceased  under  mortgage,  pledge,  ?'.  Shipley,  46  Cal.   154.     See   Watt  v. 

or  execution,   where  he  has    sufficient  W' hite,  46  Tex.  338.     The  creditor  who 

assets,  or  else  to  sell,  subject  to  the  in-  probates  his  claim  against  the  estate  is 

cumbrance,  is  found  enforced  by  legis-  not  debarred  thereby  from  proceeding 

lation,  provided  there  appears  to  be  a  to  foreclose  his  mortgage.     Simms  v. 
valuable  interest  over  and  above  the 

557 


§  431  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

the  estate  itself  than  he  was  in  without  such  security  ; '  and  a 
secured  creditor's  claim  aside  from  the  worth  of  the  security 
takes  no  rightful  priority. 

On  the  whole,  therefore,  the  rights  of  general  creditors  of  a 
decedent  are  subject  to  all  equities  attaching  to  the  estate  at 
the  time  of  his  death ;  such  creditors  take  the  estate  in  the 
plight  in  which  they  find  it,  and  their  rights  cannot  be  enlarged 
beyond  their  debtor's,  to  the  prejudice  of  secured  creditors  or 
of  lien  priorities.- 

§  431.  Invalid  or  Exorbitant  Claims;  Voluntary  Transactions. 
—  Claims  against  the  estate,  which  have  no  legal  validity,  must 
not  be  paid ;  and  if  exorbitant  or  partially  invalid,  the  executor 
or  administrator  should  reduce  to  the  proper  amount ;  otherwise 
his  erroneous  or  excessive  payment  will  amount  to  a  devastavit, 
as  against  legatees  and  distributees  as  well  as  creditors,  A 
bond  debt,  founded  in  immoral  consideration,  or  transgressing 
the  usury  laws,  or  given  by  one  incompetent  to  contract,  comes 
within  this  rule.^  And  the  testator  or  intestate  having  died  an 
infant,  it  is  held  that  his  legal  representative  should  not  pay  a 
debt,  not  for  necessaries,  which  required  one's  ratification  on 
attaining  majority  to  render  it  binding.* 

Richardson,    32    Ark.    297.     See    Wil-  ject  of  compromise),  Parker  v.  Cowell, 

liamson  v.  Furbush,  31  Ark.  539.  16  N.  H.  149.     We  may  presume  that 

'  Wyse  7'.   Smith,  4  Gill   &   J.   295 ;  the  general    principle  of   probate   and 

Pie.ster  v.  Piester,  22  S.  C.  139.  equity,  which  exempts  a  representative 

^  Dulaney  v.  Willis,  95  Va.  606.     But  from    the    liabilities    of    extraordinary 

where  a  judgment   creditor's  lien  has  bailee  or  insurer  (see  j-?</ra,  §  315),  ap- 

expired,  he  must  enforce  it  for  the  ben-  plies  to  the  payment  of  claims  in  mod- 

efit  of  all  creditors,  if  at  all.     104  Iowa,  ern    practice,    whether    they   turn    out 

360.     See  further,  160  Mass.  499;   104  illegal  or  not. 
N.  C.  45S.  ■•  Smith  v.   Mayo,  9  Mass.  62.     But 

^i    Ves.    Sen.    254;    18     Ves.     258;  see  Schoul.   Dom.   Rel.  3d  ed.  _§   402, 

Wms.  Exrs.  1016.     A  manifestly  illegal  showng  that  the  privilege  of  avoiding 

expenditure  cannot  be  allowed  on  an  passes  to  an  infant's  representatives  and 

accounting.      Burke    v.    Coolidge,    35  privies  in  blood,  who  may  either  avoid 

Ark.  180.     (Otherwise,  as  to  debts  paid  or  uphold.     See  also  Washburn  t/.  Hale, 

honestly,    and    not    carelessly    without  10   Pick.  429;  La  Rue  v.   Gilkyson,  4 

knowledge  that  the  consideration  was  Penn.   St.  375  ;  Smith  v.  McLaughlin, 

illegal.     Coffee  v.  Ruffin,  4  Coldw.  487.  77  111.  596.     If  the  executor  or  admin- 

And  see,  as  to  claims  of  doubtful  legal-  istrator  in  good  faith   pays  a  claim  as 

ity  (which  appear  to  be  always  a  fit  sub-  allowed  by  the  probate  court  (in  a  State 


CHAP.  ].]    DEBTS  AM)  CLAIMS  UPON  THE  ESTATE.       §  432 

Debts,  for  which  the  deceased  was  not  in  fact  liable,  do  not 
become  obligatory  by  directions  in  his  will  that  "  all  just  debts  " 
should  be  paid.'  So,  too,  though  a  voluntary  bond  be  good  be- 
tween the  parties,  yet,  in  the  course  of  administration,  it  must 
be  postponed  to  any  just  debts,  though  the  latter  be  due  by 
simple  contract.^  Gratuitous  and  voluntary  services,  rendered 
the  deceased  by  members  of  his  own  family  or  others,  cannot  be 
made  the  basis  of  a  legal  claim  against  the  estate,  which  the 
legal  representative  should  recognize ;  there  must  have  been  a 
mutual  intention  for  recompense  either  expressed  or  to  be  inferred 
properly  from  the  circumstances  and  conduct  of  the  parties  at 
the  time  the  services  were  rendered.^  Even  as  to  services  en- 
titled to  a  recompense,  the  statutory  period  of  limitations  must 
apply.^ 

§  432.    Claims    of  Persons    disappointed  of  a  Legacy,  etc.  —  As 

to  persons  in  general,  who  perform  a  service  in  expectation  of  a 
legacy,  mere  expectation  cannot  create  an  enforceable  contract ; 
but  a  mutual  understanding  that  the  service  would  be  recom- 
pensed by  a  legacy,  may,  if  shown,  afford  the  basis  of  a  valid 
claim  upon  the  estate,  where  the  deceased  has  left  no  will,  or 
omitted,  under  his  will,  to  make  suitable  provision. 5  Other 
instances  of  a  debt  enforceable  against  an  estate  because  of  some 
violated  promise  to  bestow  by  testament  may  occur.^ 

§  433.  Decree  or  Order  for  Payment.  —  Irksome  States,  claims 
being  regularly  filed  in  the  probate  court  for  classification  and 

where  the  probate  court  receives,  classi-  one's  estate.     Nye  v.  Lothrop,  94  Mich, 

fies,  and  allows),  its  invalidity  cannot  be  411. 

set  up  against  him  afterwards.     Owens  ^  Shakespeare  v.  Markham,  17  N.  Y. 

7\  Collinson,  3  Gill  &  J.  25.  Supr.  311,  322,  and  cases  cited;  Rhea 

Of  claims  barred  by  limitations  we  t'.  Meyers,  in  Mich.  140;  106  Mich. 490, 

have  already  spoken.     Supra,  §  389.  136  Penn.  St.  239;    Schoul.  Dom.  Rel. 

'  Smith  V.  Mayo,  9  Mass.  62  ;  Mason  §§  238,  274;  Schoul.  Wills,  §§  452,453. 

7-'.  Man,  3  Desau.  116.  Cf.  Weaver's  Estate,  182  Penn  St.  349; 

^  Stephens  v.  Harris,  6  Ired.  Eq.  57.  1 18  N.  C.  752  ;  93  Wis.  104. 

'  See  Schoul.    Hus.  &  Wife,  §   274,  Claims  of  children  and  near  relatives 

and  general  works  on  contracts.     And  against  a  parental  estate,  and  claims  by 

see  Shallcross  v.  Wright,  12  Beav.  558.  a  surviving  spouse  against  the  estate  of 

*  Hughes's  Estate,  176  Penn.  St.  387.  another,  are  discussed  in  other  treatises. 

But  mere  inadequacy  of  consideration  '' Ewers  z'.  White,  114  Mich.  266.     See 

will  not  defeat  wholly  a  claim   against  §  490,  note. 

559 


§  434  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

allowance,  the  judge  or  surrogate  will  order  payment,  or,  by  de- 
cree, establish  the  classification  and  indebtedness  of  the  estate ; 
and,  acting  upon  such  order  in  good  faith,  the  representative  is 
protected.'  But,  except  for  insolvent  estates,  the  rule  elsewhere 
is,  to  leave  the  creditors  and  legal  representative  to  the  usual 
remedies  in  other  courts,  or  their  private  arrangements  ;  the 
probate  court  confining  itself  to  disputed  matters  specially  re- 
ferred, and  allowing  or  disallowing  the  payments  charged  in  the 
administration  account.  Even  in  States  where  claims  are  first 
allowed  and  approved,  the  administrator's  payment,  without  a 
previous  order  of  the  court,  is  held  valid,  if  in  itself  a  proper 
payment  and  such  as  the  court  would  have  decreed.^  Local 
practice  sometimes  permits  the  surrogate  or  probate  court  to 
liquidate  demands  of  an  uncertain  amount,  whether  legal  or 
equitable,  and  order  them  paid.^  The  allowance  of  a  claim 
against  the  estate  of  a  deceased  person,  by  the  probate  court,  is, 
at  least,  a  quasi  judgment,  and  cannot  be  collaterally  impeached.'' 

§  434.  Commissioners  or  Auditors  to  examine  Claims.  —  Com- 
missioners or  auditors  are  sometimes  appointed,  under  local  stat- 
utes, to  examine  and  report  to  the  probate  court  concerning 
claims  presented  against  the  estate  of  a  deceased  person.  The 
duties  of  such  commissioners,  as  well  as  the  occasion  for  appoint- 
ing them,  are  set  forth  at  length  in  the  local  codes,  whose  pro- 
visions should  be  carefully  followed. ^ 

■  Arnold  v.  Downing,  11    Barb.  554;  *  Baker  j'.  Rust,  37  Tex.  242;  supra, 

Cossitt  V.  Biscoe,  12  Ark.  95;  Woodz/.  §  420;  35  Neb.  422. 

EllLs,  12  Mo.  616;  Owens  v.  Collinson,  '  Such  commissioners   are  most  fre- 

3  Gill  &    J.  25  ;  Lanier   v.    Irvine,    24  quently  appointed  where  the  executor 

Minn.  116;  Johnson  v.  Von  Kettler,  66  or  administrator  represents  the  estate 

111.  63 ;  Jessup  V.  Spears,  38  Ark.  457.  insolvent.     In     Maine,    commissioners 

Where  a  claim  is  approved  by  the  ad-  are    appointed   on    exorbitant     claims, 

ministrator,  and  allowed  by  the  probate  Rogers   z/.  Rogers,  67    Me.  456.     And 

court,  it  cannot  be  disallowed  by  collat-  see  Buchozz'.  Pray.  36  Mich.  429;  Boyd 

eral    proceedings.     Smith    v.   Downes,  v.  Lowry,    53    Miss.    352 ;  Commercial 

40  Tex.  57.     And  see,  as  to  matters  of  Bank  v.  Slater,  21   Minn.  72;  Capehart 

local   practice,    Harper    v.    St.roud,    41  ?'.  Logan,    20  Minn.   442;  Hairland  v. 

Tex.  367.  Trust   Co.,  108  Penn.  St.  236.     Claims 

"  I^ckhart    v.  White,    18    Tex.    102.  must  be  presented    to    them   within   a 

See  Thompson  v.  Taylor,  71  N.  \ .  217.  specified  limited  time.     The  report  of 

■>  Babcock  v.  Lillis,  4  Bradf.  218.  such  commissioners,  as  to  the  allowance 

560 


CHAP.  I.]    DEBTS  AND  CLAIMS  UPON  THE  ESTATE.       §  435 

§  435.  Exhaustion  of  Assets  in  paying  Superior  Claims  ;  Prefer- 
ences to  be  observed  ;  Representation  of  Insolvency.  —  An  execu- 
tor or  administrator,  whose  assets  are  necessarily  exhausted  in 
paying  debts  of  the  prior  class,  is  bound  to  plead  accordingly 
when  sued  on  a  debt  of  lower  rank  ;  otherwise  a  sufficiency  of 
assets  for  both  classes  is  virtually  admitted,  and  he  must  respond 
accordingly.'  And  if,  upon  due  opportunity  to  ascertain  the  con- 
dition of  the  estate,  he  believes  it  to  be  insolvent,  he  should  so 
represent  to  the  court  and  relieve  himself  of  undue  responsibility.^ 
Rut  in  some  States  it  is  distinctly  provided,  that  where  the  exec- 
utor or  administrator  shows  by  his  account  in  the  probate  court 
that  the  whole  estate  and  assets  in  his  hands  have  been  exhausted 
in  the  administration  and  funeral  charges,  debts  of  last  illness, 
and  other  debts  or  claims  preferred  by  statute,  such  settlement 
shall  be  a  sufficient  bar  to  any  action  brought  against  him  by  a 
creditor  not  entitled  to  such  preference,  even  though  the  estate 
has  not  been  represented  insolvent. ^  It  would  be  devastavit, 
rendering  him  personally  liable  for  the  deficiency,  if  the  execu- 
tor or  administrator  gave  preference  to  a  debt  of  lower  dignity 
over  those  duly  presented  of  a  higher  ;  and  this  rule  is  the  same 
in  law  and  equity. •♦ 

or  rejection  of  certain  claims  submitted  433.     See  Clark  z/.  Davis,  32  Mich.  154. 

to  them,  is  usually  final,  unless  appealed  The  commissioners  are  not  a  "court  " 

from;  and  claims  rejected  by  them  can-  in  the  constitutional  sense.     40  Mich, 

not  be  afterwards    used    by   set-off   or  503.     They    cannot     find    and    report 

otherwise  against  the  estate.     Rogers  v.  against  persons  who  do  not  appear.     59 

Rogers,  67   Me.  456 ;  Probate  Court  v.  Mich.  290.     Under  some  codes  a  cred- 

Kent,  49  Vt.  380.     And  even  the  pro-  itor  may  call  for  commissioners  if  the 

bate  court  has  not  always  a  statutory  court  neglects  to  appoint  them ;  57  Vt. 

power  to  accept,  reject,  or  modify  their  49. 

report  at  discretion.     As  to  notice  of  '  i    Salk.    310;  Wms.    Exrs.    989;  2 

the  time  and  place  for  hearing  and  ex-  Bl.  Com.  511. 

amining  claims,  and  the  general  proceed-  ^  Newcomb  z/.  Goss,  i  Met.  333.    But 

ings  of  commissioners,  cf.  local  statutes ;  in  modern  practice  a  judicious  executor 

Hall  V.  Merrill,  67  Me.  112;  insolvent  or  administrator  may  generally  bring  all 

estates,   §  446.     Claims    purely   of  an  creditors  to  accept  a /r(7  ra/^  allowance, 

equitable  or  contingent  character  can-  according  all  due  priorities,  and  so  close 

not   be  determined  by  commissioners,  the  estate  with  less  cost  and  delay. 

Brown   v.  Sumner,   31    Vt.  671.     And  ^  Mass.  Gen.  Stats,  c.  97,  §  20. 

see  51    Vt.  50.     But  the  probate  or  the  ■•  Moye  v.  Albritton,  7  Ired.  Eq.  62; 

"county"  court  may  have  jurisdiction  Gay  z'.  Lemle,  32   Miss.  309;  Huger  z/. 

of  such  claims.     Hall  v.  Wilson,  6  Wis.  Dawson,   3   Rich.   328  ;  Swift  v.  Miles, 

36  561 


S  436  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

§  436.   Notice   of   Debts  as  affecting   their   Payment   with    due 
Preferences;  English  Rule. —  It  is  laid   down,  that  an  executor 
or  administrator   may  voluntarily  pay  a  debt  of  the  inferior, 
before  one  of  a  superior  sort,  of  which  he  had  no  previous  no- 
tice ;  a  doctrine,  fundamental  in  character  and  rational,  which 
keeps  tardy  creditors  from  disturbing  the  settlement,  and  which 
obliges  all  who  mean  to  assert  claims  upon  an  estate  to  present 
them  in  good  season.'     The  rule  that  the  executor  or  adminis- 
trator must  personally  respond  as  for  devastavit,  where  he  has 
used  up  the  assets  upon  inferior  debts,  applies  with  this  reserva- 
tion ;  ^  for,  if  he  had  no  notice  of  the  higher  debt  in  question,  and 
was  not  bound  to  take  notice  of  it,  he  must  stand  excused. 
Where,  too,  it  is  said   that   debts   of   superior   rank   must   be 
pleaded  in  bar  of  an  action  to  recover  a  debt  of  lower  rank,  if 
there  are  not  assets  enough  for  both,  or  else  the  representative 
will  be  personally  bound,  a  like  reservation  is  to  be  understood  ;3 
and  hence,  an  executor  or  administrator  may  plead,  when  sued 
on  a  debt  of  the  higher  rank,  judgment  recovered  without  no- 
tice thereof  on  a  debt  of  the  lower  rank  to  the  exhaustion  of 
assets  ;  for,  unless  he  knew  of  the  higher  debt,  he  could  not 
have  prevented  a  recovery  of  the  lower.'*     As  to  debts  in  gen- 
eral, actual  notice  must  have  been  received  by  the  executor  or 
administrator,  in  order  to  preclude  this  plea ;  though,  what  this 
notice,  the  English  cases  do  not  clearly  determines     But,  of 
judgments,  decrees  in  equity,  and  debts  due  by  recognizance 
and  statute,  the  judicial  record  is  treated  as  affording  construc- 
tive notice,  which  every  executor  or  administrator  is  bound  to 
regard;^  such  debts  being  styled  debts  of  record,  and  classed 
accordingly.     With  the  modern   extension  of  the  courts  and 

2  Rich.  (S.  C.)  Eq.  147;  People  v.  '  It  is  intimated  in  i  Mod.  175,  that 
Phelps,  78  111.  147  ;  Howell  v.  Reams,  such  actual  notice  must  be  by  suit. 
73  N.  C.  391.  Cf.  Miller  v.  Janney,  15  But,  by  the  better  authorities,  the  exec- 
Mo.  265.  utor  or  administrator,  however  apprised 
'2  Show.  492;  Hawkins  v.  Day,  i  of  the  existence  of  a  higher  debt,  cannot 
Dick.  155;  Wms.  Exrs.  1029.  safely    disregard.     Wms.    Exrs.    1032; 

2  Supra,  §  425.  Oxenham  v.  Clapp,  2  B.  &  Ad.  312. 

3  Sttpra,  §  435.  *  Cro.  Eliz.  763 ;    Searle  v.  Lane,  2 
*  Bull.  N.  P.  178;  Sawyer  v.  Mercer,,  Freem.    104;    Wms.  Exrs.   1031,  1032. 

I  T.  R.  690;  3  Lev.  114;   Wms.  Exrs. 
1029. 

562 


CJIAP.   I.]  DEBTS    AND    CLAIMS    UPON    THE    ESTATE.  §   437 

judicial  business,  this  rule  must  needs  impose  a  perilous  respon- 
sibility upon  the  legal  representative  ;  but,  except  for  requiring 
that  judgments  be  docketed  in  order  to  afford  a  constructive 
notice,  English  legislation  long  did  nothing  to  alleviate  the  bur- 
den thus  imposed  upon  the  representative.' 

§  437-  T^®  Same  Subject;  English  Rule  as  to  Equal  Creditors; 
Creditor's  Bill,  etc. —  Among  creditors  of  equal  degree,  the  Eng- 
lish law  has  permitted  the  executor  or  administrator  to  pay  one 
in  preference  to  another  at  his  discretion  ;  a  privilege  to  do  in- 
justice to  others  by  way,  perhaps,  of  recompense  for  the  injus- 
tice done  to  himself.^  This  preference  may  be  controlled, 
however,  by  proceedings  of  creditors  in  the  courts.  For,  as  to 
such  creditors  of  the  deceased,  a  scramble  may  ensue  in  the 
common-law  courts ;  and  not  he  who  first  commences  an  action, 
but  he  who  first  recovers  a  judgment  against  the  executor  or 
administrator,  must  first  be  paid.  If  one  such  creditor  com- 
mences the  suit,  and  the  legal  representative  gets  notice  of  it, 
the  latter's  right  to  voluntarily  prefer  another  creditor  of  equal 
degree,  and  then  plead  plenc  administravit,  becomes  checked.^ 
Yet  the  privilege  is  not  wholly  lost  ;  for,  by  baffling  this  liti- 
gant until  he  has  confessed  judgment  to  the  suit  of  another 
creditor  of  equal  degree,  or  otherwise  aided  the  other  creditor 
to  recover  judgment  first,  the  executor  or  administrator  still 
e.Kercises  his  right  of  preference.''  Equity  will  not  interfere 
with  such  an  election  ;  ^  nor  do  the  courts  of  common-law  pre- 
clude his  ]At2i  puis  darrein  continuance,  that  judgment  was  con- 
fessed in  the  latter  suit,  after  he  had  pleaded  the  general  issue 
to  the  former ;  nor  even  require  that  the  debt  confessed  was 
known  to  him  before  this  action  commenced.*"  A  prior  plea, 
confessing  assets  to  a  certain  amount,  may  accord  a  similar  pref- 
erence.7     All  that  the  law  appears  to  insist  upon  is  bona  fide 

'Stat.  4&  5   W.  &  M.  c.  2o;  stat.  "  Vaugh.  95  ;  Lyttleton  f.  Cross,  3  K. 

23  &  24  Vict.  c.  38.     But  see  Stat.  32  &  &  C.  217  ;  Wms.  Exrs.  1034. 

33  Vict.  c.  46 ;  also  §  427.  -'  Lepard  v.  Vernon,  3   Ves.  cSc  B.  53 ; 

^  Wms.     Exrs.     1033;    Lyttleton    v.  i  P.  Wms.  215. 

Cross,  3  B.  &  C.  322.  ^  Lyttleton  v.  Cross,  3   B.  &  C.  322  ; 

^  Ashley   v.     Pocock,     3    Atk.    208 ;  Prince  v.  Nicholson,  5  Taunt,  -i,},!). 

Wms.  Exrs.  1033,  1034.  "  Waters  v.  Ogden,  2  Dougl.  453. 

563 


§  437  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

conduct  on  the  part  of  the  executor  or  administrator,  so  that 
the  judgment  confessed  by  him,  or  the  plea  confessing  assets  to 
a  certain  amount,  shall  disclose  what  is  truly  owing,  or  what  is 
the  true  state  of  the  assets,  with  reference  to  the  several  cred- 
itors suing,  and  the  time  and  circumstances  of  the  several  suits.' 
Where,  instead  of  an  action  at  law,  proceedings  in  equity  are 
commenced  against  the  executor  or  administrator  by  a  creditor's 
bill,  it  is  settled  in  England  that  a  decree  of  chancery  against 
an  executor  or  administrator  is  equivalent  to  a  judgment  at  law 
against  him  ; '  whence,  it  follows,  that  a  decree  for  payment 
must  take  priority  oi  judgments  at  law  later  obtained,'  and  that 
by  suffering  such  a  decree  to  be  entered  by  bill  taken  pro  con- 
fcsso,  the  executor  or  administrator  preserves  still  his  right  in 
the  courts,  of  electing  to  prefer,  as  among  creditors  of  the  same 
degree.''  But  proceedings  in  equity  may  be  brought  in  behalf 
of  one  creditor,  or  several,  or  all  ;  and  to  correct  the  manifest 
injustice  of  a  preference  by  the  representative,  such  as  the  com- 
mon law  permitted,  modern  English  practice  favors  the  chancery 
bill  brought  once  and  for  all  on  behalf  of  all  creditors  of  the 
deceased,  wherever  there  is  likelihood  of  insolvency,  for  the 
jourpose  of  compelling  an  account  and  a  just  and  ratable  distri- 
bution of  the  assets  among  all  the  creditors.'  The  barrier  thus 
afforded  against  the  preference  among  claims  of  equal  rank  is 
still,  however,  an  imperfect  one  ;  for,  contrary  to  analogy,  it  is 
held  that  even  voluntary  preference  may  be  made  by  the  execu- 
tor or  administrator  pending  a  decree  upon  the  bill  ;^  while,  in 
accordance  with  the  common-law  doctrine,  judgments  confessed 
by  the  representative  elsewhere,  before  the  decree  is  actually 
entered,  take  precedence,  as  of  course,  among  debts  of  the  same 

■  Tolputt  7'.  Wells,  I  M.  &  S.  395.  v.  Jukes,  2   Ves.  jr.  518;  Mitchelson  v. 

-  Morrice  v.  Bank  of  England,  Cas.  Piper,    8    Sim.  64 ;   Wms.    Exrs.    1036, 

temp.  Talb.  217  ;  s.  c.  2  Bro.  P.  C.  465;  1037. 

Wms.  Exrs.  1035,  1036.  *  Upon  this  point   Darston  v.   Lord 

^  Cas.  temp.  Talb.  217,  223.     By  in-  O.xford,  Prec.  Ch.  188,  ruled  differently, 

junction  equity  will  enforce  obedience  and,  as  it  would  seem,  more  reasonably ; 

to  such  a  decree,  and  due  heed  to  its  but  the  decree  was  reversed  on  appeal ; 

precedence   in   the  courts  of  common  s.  c.  Coles,   229.     And   see   Maltby  v. 

law.  Russell,  2  Sim.  &  Stu.  227  ;  Wms.  Exrs. 

*  Cas.  temp.  Talb.  217,  225.  '038;   Radcliffe  AV,  W.  R.  417. 

'  Brady  v.  Shiel,  1  Camp.  148;  Jones 

564 


CHAP.  I.]    DEBTS  AND  CLAIMS  UPON  THE  ESTATE.       §  438 

rank.'  All  such  preferred  payments  are  accordingly  respected 
when  the  decree  is  entered ;  though  as  to  creditors  who  have 
received  a  partial  payment,  chancery  will  make  no  further  pay- 
ment to  them,  until  all  the  other  creditors  are  proportionably 
paid.^ 

§  438.  The  Same  Subject;  American  Rule.  —  There  are  Amer- 
ican cases  which  support  some  of  the  doctrines  above  stated. 
Doubtless,  in  this  country,  an  executor  or  administrator  who  pays 
debts  of  one  class,  without  notice  of  other  debts  entitled  to  pri- 
ority, commits  no  waste,  pro\dded  that  in  the  time  and  mode  of 
such  payment  he  transgress  no  local  statute.^  In  rare  instances 
his  legal  right  to  give  preference  among  creditors  of  equal  de- 
gree, by  confessing  a  judgment,  has  been  conceded  ;  ■♦  but  it  is 
held  that  such  preference  is  checked  by  the  filing  of  a  creditor's 
bill  in  equity.5  Constructive  notice  of  a  judgment  debt,  as  af- 
forded by  the  judicial  record,  is  not  favored  in  this  country;*' 
nor  are  chancery  proceedings  on  the  creditor's  behalf,  where 
action  at  law  opens  the  readier  means  of  recovering  his  dues.^ 

But  the  policy  of  American  legislation  is  to  discourage  com- 

'  Larkins  v.    Paxton,    2    Beav.   219;  representative  from  giving  such  prefer- 

Gilbert  v.  Hales,  8  Beav.  236.     Larkins  ence.    Wilson  v.  Wilson,  ib.    This  right 

V.  Paxton  indicates  how  full  the  oppor-  of  preference  is  not  favored  where  the 

tunity  might  be  for  carrying  out  such  representative  was  interested  personally 

a  preference,  and  how  greatly  the  estate  in  the  debt  to  which  he  confesses  judg- 

might  leak  away,  while  chancery  pur-  ment.     Powell  v.  Myers,  i  Dev.  &  Bat. 

sued  its  tedious  processes ;  for  here  the  Eq.  562  ;  next  section, 

creditor's  suit  was  instituted  in   181 1,  '' Barnawell  7'.  Smith,  5  Jones  Eq.  168; 

the  answers  were  got  in  about  1S20,  and  Overman  v.  Grier,  70  N.  C.  693. 

no  decree  was  entered  until  1829.     See  *  A    judgment    by  a   justice  of   the 

Wms.  Exrs.  1039.     And  as  to  an  order  peace,  not  being  of  record,  requires  ac- 

nisi,  see  L.  R.  8  Ch.  D.  154.  tual  notice.     State  v.  Johnson,  7   Ired. 

^  Wilson  V.  Paul,  8  Sim.  63.  L.  231.     As  to  dormant  judgment.s,  see 

'  Place  V.  Oldham,   10  B.  Mon.  400  ;  supra,  §  428.     Notice  of  a  debt  entitled 

Mayo  V.  Bentley,  4  Call  (Va.)  528.    Pay-  to  priority  need  not  be  by  suit.     Web- 

ment,  without  knowledge  of  a  debt  due  ster  z\   Hammond,  3  Har.  &  M.   131. 

the    United    States,    is  thus    justified.  And  in  Arkansas  a  docketed  judgment. 

United  States  v.  Ricketts,  2  Cr.  C.  C.  unless  duly  presented  as  a  claim,  loses 

553;  Aiken  z'.  Dunlap,  16  John.  85.  its  priority.      Keith  v.   Park.s,  31  Ark. 

*  Wilson  V.  Wilson,  i   Cranch,  C.  C.  664. 

255;  Greggz'.  Boude,  9  Dana,  343.  And  ^  McCoy  «/.  Green,  3  Johns.  Ch.  58; 

equity  wll   not  interfere  to  prevent  the  Walker  v.  Cheever,  35  N.  H.  347. 


§  439 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


petition  among  creditors,  and  the  whole  system  of  voluntary 
jjreference  ;  and,  under  the  statutes  which  require  a  presentment 
of  claims  within  a  definite  period,  to  the  representative  or  to  the 
court,  a  date  is  fixed  at  which  debts  become  absolutely  payable 
from  the  estate,  according  to  their  statute  rank,  and  the  repre- 
sentative is  granted  full  immunity  as  to  all  claims  not  brought 
to  his  notice  until  afterwards,  save  as  the  assets  then  left  may 
suffice  for  meeting  them.' 

§  439.  Debt  due  the  Representative  from  the  Estate  ;  Right  to 
retain,  etc.  —  As  part  of  the  English  system  of  preference  among 
equal  creditors  at  an  executor's  or  administrator's  discretion,  the 
legal  representative  has  a  right  to  prefer  his  own  debt  to  all 
others  of  equal  degree,  and  to  retain  assets  for  it  accordingly.^ 


'  Supra,  §  420.  The  Massachusetts 
statute  provides  that  no  executor  or  ad- 
ministrator can  be  held  to  answer  to  a 
sxiit  of  a  creditor  of  the  deceased,  if 
commenced  within  one  year  after  he 
gives  bond,  unless  it  is  on  a  demand 
that  would  not  be  affected  by  the  insol- 
vency of  the  estate  or  is  brought  after 
the  estate  has  been  represented  insol- 
vent for  the  purpose  of  ascertaining  a 
contested  claim.  And  if,  within  the 
year  after  giving  notice  of  his  appoint- 
ment, he  does  not  have  notice  of  de- 
mands against  the  estate  which  will  au- 
thorize him  to  represent  it  insolvent,  he 
may  proceed  to  pay  the  debts  due, 
without  any  personal  liability  on  that 
account  to  any  creditor  who  shall  not 
have  given  notice  of  his  claim,  although 
the  estate  remaining  should  prove  in- 
sufficient to  pay  the  whole.  Mass.  Gen. 
Stats,  c.  97,  §§  16,  17.  See  Newcomb 
V.  Goss,  I  Met.  333 ;  Titterings.  Hooker, 
58  Mo.  593. 

A  claim  ought  to  be  presented  to  the 
executor  or  administrator  in  writing,  al- 
though not  positively  so  required  by 
statute ;  merely  mentioning  the  approxi- 
mate amount,  etc.,  is  not  enough  to 
avoid   the    barrier.     Pike  v.  Thorp,  44 

5 


Conn.  450.  Under  the  California  code, 
if  the  representative  pays  some  of  the 
creditors  in  part,  he  is  bound  to  pay  a 
like  proportion  into  court  for  creditors 
whose  suits  are  pending  on  their  claims. 
61  Cal.  71.     But  see  60  Tex.  422. 

Provision  is  usually  made  (as  sug- 
gested j/z/^vz,  §  420)  by  these  American 
statutes  for  protecting  the  interests  of 
creditors  whose  claims  will  not  season- 
ably accrue,  or,  under  peculiar  equitable 
circumstances,  cannot  be  presented 
within  the  period  fixed  by  the  statute. 

-  Wms.  Exrs.  1 039-1 050,  where  this 
topic  is  fully  considered ;  cases  infra. 
This  right  of  retainer  is  treated  as  aris- 
ing from  mere  operation  of  law,  and  the 
incongruity  that  one  should  sue  himself 
or  enter  into  the  strife  among  equal 
creditors  to  i)rocure  a  prior  judgment. 
2  Bl.  Com.  511  ;  3  Bl.  Com.  18;  Wms. 
Exrs.  1039.  And  see  (1896)  2  Ch.  345. 
But  the  general  doctrine  of  lien,  and 
the  maxim  that  among  equals  he  in 
possession  has  the  first  claim,  may  like- 
wise be  considered  the  foundation ;  a 
doctrine  which  may  be  invoked  still  in 
aid  of  administration  charges,  sums  paid 
and  expenses  incurred  in  the  trust. 


66 


CHAP.   I,]  DEBTS    AND    CLAIMS    UPON    TIIK    ESTATE. 


§   439 


This  privilege  being  inequitable,  courts  of  chancery  do  not  allow 
its  assertion  in  respect  of  equitable  assets,  sought  by  their  aid  ; ' 
though  this  right  of  retainer,  as  regards  legal  assets,  extends  to 
debts  which  may  be  due  the  executor  or  administrator,  either  as 
trustee  or  as  cestui  que  trust,  as  well  as  individually,  and  chan- 
cery itself  concedes  the  principle.-  The  right  does  not,  how- 
ever, extend  to  the  gift,  bequest,  or  transfer  of  other  creditors' 
proved  debts. ^  And  there  can  be  no  right  to  retain  in  an  action 
at  law  for  a  demand  of  which  no  account  can  be  taken  by  a  jury, 
and  which  the  other  party  cannot  controvert ;  '♦  nor  on  a  claim 
for  damages  arbitrary  in  amount,  as  for  a  tort.  When  the  debt 
due  him  exceeds  the  value  of  the  assets,  so  that  the  estate  is  in- 
solvent, he  may  keep  the  assets  in  satisfaction,  without  realizing 
upon  them. 5  His  right  of  indemnity  may  sometimes  create  an 
equitable  debt  as  to  which  he  may  retain.^  The  executor  or  ad- 
ministrator, it  is  held,  may  retain  for  a  debt  whose  direct  suit 
would  be  barred  by  the  statute  of  limitations,^  and  notwithstand- 
ing the  estate  is  insolvent  \'^  but  he  cannot  retain  to  the  prejudice 
of  his  co-executor  or  co-administrator.'^ 


'  2  Eq.  Cas.  Abr.  450;  41  L.  T.  n.  s. 
672. 

^  Plummer  v.  Marchant,  3  Burr.  1 380 ; 
Cockroft  V.  Black,  2  P.  Wms.  298. 

^  Jones  V.  Evans,  L.  R.  2  Ch.  D.  420. 

*  Loane  v.  Casey,  2  W.  Bl.  968 ;  De, 
Tastet  V.  Shaw,  i  B.  &  Aid.  664. 
Whether  the  executor,  by  instituting  an 
administration  action  on  behalf  of  him- 
self and  all  other  creditors,  waives  his 
right  of  retainer,  see  Campbell  v.  Camp- 
bell, 29  W.  R.  233.  And  see  Richmond 
V.  White,  27  W.  R.  878.  The  right  of 
retainer  is  not  affected  by  the  later  ju- 
dicature act  abolishing  the  distinction 
between  specialty  and  simple  contract 
debts.     L.  R.  16  Ch.  D.  368. 

5  Gilbert  i?^,  (1898)  I  Q.B.  282.  As  to 
an  annuity,  arrears  or  future  payments, 
see  Fowler  v.  James,  (1896)  i  Ch.  48. 
As  to  a  deceased  pauper  who  has  been 
publicly  maintained,  see  (1895)  "  Q-  ^• 
59- 

*  Giles  Re,  (1896)  i  Ch.  956. 


'  Hopkinson  v.  Leach,  cited  Wms. 
Exrs.  1049;  Stahlschmidt  v.  Lett,  i 
Sm.  &  G.  415;  (1896)  I  Ch.  844.  But 
cf.  15  Lea,  438. 

^  Davies  v.  Parry,  (1899)  i  Ch.  602. 

9  II  Vin.  Abr.  72  ;  9  Mod.  268.  The 
representative  may  retain  for  assets 
which  came  to  his  hands  and  which  he 
pays  over  to  a  receiver ;  but  not  for  as- 
sets collected  by  a  receiver.  The  right 
is  capable  only  of  being  exercised  against 
assets  which  come  into  his  hands.  32 
Ch.  D.  395. 

An  executor  or  administrator  cannot 
retain  for  a  debt  due  himself  which  is 
unenforceable  because  of  the  Statute  of 
Frauds ;  for  he  is  no  better  than  any 
other  creditor  of  the  estate  in  this  re- 
spect. Rownson  Re,  2()  Ch.  D.  358; 
supra,  §  392.  As  to  setting  off  the 
representative's  claim  from  the  estate 
against  what  he  owes  it,  see  25  Ch.  D. 
175- 


567 


§   439  EXECUTORS    AND    ADMINISTRATORS.  [PARl    V. 

In  the  United  States,  if  the  preference  among  equal  creditors 
is  not  favored,  still  less  is  that  of  the  executor's  or  administrator's 
retainer  for  his  own  debt.  Confession  of  judgment,  under  such 
circumstances,  is  viewed  with  suspicion,  nor  will  the  judgment 
be  treated  as  proof  of  the  debt.'  It  is  held  that  the  representa- 
tive cannot  retain  for  his  own  legacy  or  distributive  share  to  the 
detriment  of  other  legatees  and  distributees  similarly  entitled.' 
And,  though  in  a  few  States  the  English  doctrine  of  retainer 
may  still  prevail,^  the  better  American  policy  insists  that  cred- 
itors of  the  same  rank  shall  have  equal  opportunity.  In  New 
York  and  Missouri,  the  right  of  retainer  has  been  expressly 
abolished. ■♦  Other  States,  in  establishing  the  system  of  classi- 
fication and  allowance  of  claims  by  the  probate  court,  by  infer- 
ence exclude  such  right. 5  A  Massachusetts  statute,  to  check 
abuses  of  this  sort,  requires  further,  that,  whenever  a  debt, 
claimed  by  the  representative  as  due  to  himself  from  the  de- 
ceased, is  disputed  by  any  person  interested,  the  claim  shall  be 
stated  fully  of  record,  and  submitted  under  directions  of  the 
probate  court  to  referees  agreed  upon  by  the  claimant  and  the 
objecting  party .'^  Such  a  claim,  however  allowed,  must  take  its 
full  or  its  ratable  proportion  with  those  of  other  creditors.^  In 
New  York  the  surrogate  has  jurisdiction  to  adjudge  or  allow  a 

'Smith  V.  Downey,  3  Ired.  Eq.  268;         ''Mass.  Gen.  Stats,  c.  97,  §§26,  27. 

Finch   V.    Ragland,    2    Dev.    Ch.    137;  Cf.    Dana   v.    Prescott,    i    Mass.    200; 

Hubbard  z'.  Hubbard,  16  Ind.  25;  Hen-  Willey  v.  Tlaompson,  9  Met.  329. 
derson  v.  Ayers,  23  Tex.  96.  VV'hether  the  representative  who  has 

^  Gadsden  v.  Lord,  i  Desau.  247.  a  claim  against  the  estate  is  bound  to 

'  Williams  v.  Purdy,  6  Paige,  166;  present  it  within  the  time  allowed  to 
Page  V.  Patton,  5  Pet.  303 ;  2  Dev.  &  other  creditors,  where  he  retains  assets, 
Bat.  Ch.  255;  Harrison  v.  Henderson,  see  Sanderson  v.  Sanderson,  17  Fla. 
7  Heisk.  315;  5  Lea,  508;  Wms.  Exrs.  820.  He  cannot  sue  himself  at  law  to 
1039,  Am.  ed.,  ;/.  by  Perkins;  U.  S.  recover  a  debt  due  to  him  from  the  de- 
Dig.  1st  series,  Executors  and  Admin-  cedent.  11  R.  L  270. 
istrators,  301 1-3023.  'See  also   Hubbard  v.  Hubbard,   16 

*  Treat    v.    Fortune,    2    Bradf.    Sur.  Ind.  25;   Henderson  v.  Ayers,  23  Tex. 

116;  6  Thomp.   &   C.   288;  Nelson  v.  96.     As  to  the  presentment  of  the  legal 

Russell,  15  Mo.  356.     And  see  10  S.  C.  representative's    private    claim    to   the 

354.  judge  of  probate  under  New  Hampshire 

'Wright  V.  Wright,  72   Ind.   149;  4  .statute,  see  McLaughlin?'.  Newton,  53 

Redf.  263,  499.     It  must  be  proved  and  N.  H.  531.     In  New   York  the  surro 

allowed  by  the  probate  court.     58  Md.  gate  has  power  to  pass  upon  a  disputed 

442.  claim  of  an  executor  or  administrator 

568 


CHAT'.    I.]         DEBTS    AM)    CLAIMS     IPON    THE    ESTATE.  §   44O 

claim  legal  or  equitable,  of  an  executor  or  admini.strator,  against 
the  estate  represented  by  him,  whether  he  holds  such  claim  in 
a  representative  capacity  or  as  an  individual.' 

§  439c?.  The  same  Subject.  —  Where  a  testator  leaves  to  his 
executor  a  less  amount  than  is  actually  due  him  in  payment  of 
the  debt,  and  the  executor  proves  the  will  and  takes  letters,  he 
cannot,  it  is  held,  claim  more  than  the  am'ount  so  given  him,  even 
though  he  qualified  ignorantly.-  And  though  a  will  should  give 
the  executor  power  to  pay,  if  he  sees  proper,  just  debts  baired 
by  the  statute  of  limitations,  the  executor  cannot  pay  his  own 
debt  which  is  thus  barred.^ 

But  one's  own  fair  and  honest  claim  upon  the  estate  ought 
to  stand,  upon  as  good  a  footing,  at  least,  as  other  claims ;  and 
where  real  estate  may  be  sold  under  express  power  or  a  license 
for  the  payment  of  debts,  the  sale  may  be  lawfully  invoked  for 
the  payment  of  a  debt,  in  no  way  invalid  or  outlawed,  which  is 
due  the  representative.'' 

§  440.  Interest  on  Claims  presented. —  Interest  is  not  allowable 
from  a  decedent's  estate,  where,  from  the  nature  of  the  debt,  no 
interest  was  due  ;  and  the  claims  of  creditors  with  whom  settle- 
ment is  made  in  the  ordinary  course  of  administration,  are  usually 
dealt  with  on  the  footing  they  occupied  in  this  respect  at  the 
date  of  the  decedent's  death. 5  Statutes  sometimes  prescribe  a 
different  rule,  however,  where  especial  delay  arises,  as  in  the 
settlement  of  an  insolvent  estate ;  and  upon  a  contract  with  the 
representative  himself,  or  on  the  ground  of  his  delinquency,  a 

against   the  estate.     Flood,  Matter  of,  ^  Williams  v.  Williams,  15  Lea,  438. 

6  Abb.  (N.  Y.)  Fr.  x.  ,s.  407  ;  6  Thomp.  Cf.  8  Bush,  564. 

&  C.  288;  4  Redf.  263.     See  text.  "  O'Flynn  v.  Powers,  136  N.  Y.  412. 

This  right  of  retainer,  for  the  repre-  And  see  Part  V\. post.     The  represen- 

sentative's  o-v\ii  debt  against  the  dace-  tative  ought  to  present  in  due  time  and 

dent,  is  to   be  distinguished  from   his  prove  his  claim  like  those  of  third  per- 

claim  for  disbursements  and  the  charges  sons.     92  Cal.  433, 

of  administration,  for  which  he  has  a  '  Davis  v.  Wright,  2  Hill  (S.  C.)  560.; 

lien.     See  supra,  §  259;  §  ^26,  post.  Durnford,  Succession  of,  i  La.  Ann.  92. 

'  Neilley  v.  Neilley,  89  N.  Y.  352.  And  see  78  Ky.  548. 

^  Syme  v.  Badger,  92  N.  C.  706.     Cf. 
§546. 

569 


§  44-  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

creditor  may  claim  interest  as  against  him,  where  he,  on  his  part, 
cannot  bind  the  estate  in  return.  Bonds,  notes,  and  other  instru- 
ments, given  by  the  decedent,  which  expressly  bear  interest, 
must,  doubtless,  be  paid  according  to  their  tenor. 

§  44 1 .  Mode  of  paying  off  Claims  ;  Extinguishment,  etc.  — 
Debts  are  to  be  paid  in  money  which  is  legal  tender,  or  ac- 
cording to  the  original  contract,  or  as  the  creditor  and  represent- 
ative may  mutually  agree.'  But,  as  between  the  representative 
and  the  estate,  the  prudent  interests  of  the  estate  must  be  pro- 
tected. If  the  executor  or  administrator  pay  off  the  debts  at  a 
discount,  he  is  entitled  to  a  credit  only  for  the  sums  paid  ;-  but, 
in  thus  procuring  a  discount,  advantages  which  may  prudently 
be  gained  for  the  benefit  of  the  estate,  it  is  proper  for  him  to 
secure.^ 

But  a  promissory  note  given  by  an  executor  or  administrator, 
for  a  debt  of  the  testator  or  intestate,  is  neither  a  payment  nor 
an  extinguishment  of  such  debt ;  but,  at  most,  it  only  suspends 
the  right  of  action  on  the  original  debt,  until  the  maturity  of 
such  note.-* 

A  creditor,  we  may  add,  cannot  pay  himself  by  withholding  the 
property  of  the  estate  in  his  possession  from  the  administrator  ;  s 
yet  proper  offsets  one  makes  in  striking  the  balance  due  from 
himself  as  a  debtor  are  allowable  without  special  fonnality." 

§  442.   Personal  Liability    of   Representative    for  Debts. —  An 

'  See  Magraw  v.   McGlynn,  26  (^al.  ^  Roumfort  v.  McAlamey,  82   Penn. 

420.     As  to  the  payment  of  debts  in  St.  193.     But  as  to  charging  against  a 

Confederate  money,  see  Carruthers  v.  fund  in  his  hands  by  way  of  set-off,  see 

Corbin,  38  Ga.  75  ;  McGarz'.  Nixon,  36  supra,  §  190. 

Tex.  289;  supra,  §  310.  If  a  claim  against  an  estate  is  com- 

-  Heager's  Executors,   15  Johns.  65 ;  promised,  the  whole  benefit  should  go 

Miller  z/.  Towles,  4  J.  J.  Marsh.  255.  to   the   estate.     Supra,    §    330 ;  Wms. 

^  As   to    paying   a    bank  in  its  own  Exrs.  1842.     An  executor  or  adminis- 

paper,  see  Wingate  v.  Poole,  25  111.  1 18.  trator  will  not  be  allowed  to  settle  such 

*  Taylor   v.   Perry,  48   Ala.  240.     A  a  claim  for  less  than  its  face,  and  appro- 
receipt  of  sufficient   assets  to  pay  his  priate  the  difference.     Cox  v.  John,  32 
own  debt  is  held  an  extinguishment  of  Ohio  St.  532. 
that  debt  where  the  doctrine  of  retainer  ^  92  Cal.  293. 
prevails.     27  Ala.   130;  4  Dev.  103;  2 
Hill,  340.     But  see  7  Heisk.  315. 

570 


CHAP.  I.]    DEBTS  AND  CLAIMS  UPON  THE  ESTATE.      §  444 

executor  or  administrator,  whose  conduct  is  honest  and  prudent, 
and  whose  course  conforms  to  law,  does  not  become  liable,  in 
his  private  capacity,  for  debts  of  the  deceased,  or  charges  against 
the  estate,  concerning  which  he  entered  into  no  express  undertak- 
ing. If  assets  fail  to  satisfy  all  claims  in  due  order  of  preference, 
and  he  has  used  the  assets  properly,  as  far  as  they  go,  creditors 
of  the  estate  cannot  pursue  him  farther.' 

§  443-  Payment,  or  Advancement,  out  of  Representative's  own 
Funds.  —  In  American  practice,  an  executor  or  administrator 
who  pays  the  debts  of  his  testate  or  intestate,  out  of  his  private 
funds,  or  advances  the  money  therefor,  has  usually  no  right  of 
subrogation  to  the  original  creditor,  and  can  acquire  no  undue 
advantage  over  heirs,  devisees,  and  others  interested  in  the  es- 
tate, by  doing  so.^  The  debt  becomes  extinguished  ;  and  his 
proper  mode  of  reimbursement  is  by  way  of  account  with  the 
estate.  After  he  shows  in  the  legal  manner  that  there  is  a  bal- 
ance due  him  from  the  estate,  upon  faithful  administration,  he 
has  a  right  to  recover  or  retain  it  out  of  the  personalty,  if  there 
be  any  left,  otherwise  out  of  the  land,  and  thus  be  reimbursed.^ 

§  444.  Recovery  of  Over-Payment  from  Creditor.  —  Where  the 
executor  or  administrator  has  full  authority  to  prefer  among 
equal  creditors,  as  under  the  old  English  rule,  he  will  have  neither 
right  nor  occasion  to  recall  his  deliberate  act.^  But  the  opera- 
tion of  our  American  rule  is  different.  Payments  made  without 
an  order  of  the  probate  court,  which  classifies  and  allows  claims, 
are  in  some  States  irregular ;  and  in  States  which  permit  of  a 
specified  time  for  the  presentation  of  claims,  the  executor  or 
administrator  incurs  a  personal  risk  if  he  pays  any  debt  sooner, 
and  if  later  claims,  seasonably  presented,  show  a  deficiency  of 
assets.  While  his  own  liability  is  none  the  less,  in  such  a  case, 
however,  it  is  generally  conceded  that  the  excess  may  be  recov- 

'  Eno  V.  Cornish,  Kirby,  (Conn.)  297  ;  ^  Blank's  Appeal,  3  Grant  (Pa.)  192 ; 

Rucker  v.  Wadlington,  5  J.  J.   Marsh.  Frary  v.  Booth,  37   Vt.  78 ;  Hill  v.  Bu- 

238  ;  Ritter's  Appeal,  23  Penn.  St.  95  ;  ford,  9  Mo.  869 ;  Part  VII.  c.  2,  as  to 

Orange  County  v.  Kidder,  20  Vt.  519.  allowances  on  account.     See  §  446,  w. 

"Gist  V.  Cockey,  7   Har.  &  J.  135;  ■'See  Johnson  v.  Corbett,   11   Paige, 

McClure  z/.  McClure,  19  Ind.  185.  265 


§   44^  EXECUTORS    AND    ADMINISTRATORS.  [PART   V. 

ercd  by  him  from  the  creditor  thus  imprudently  overpaid  ;  the 
inference  being  that  only  such  payment  as  the  estate  could  really 
afford  was  intended  by  him.' 

But  the  equity  of  a  creditor  honestly  accepting  payment,  where 
no  order  of  court  was  needed,  is  considered  in  some  cases  superior 
to  the  equity  of  the  representative  for  a  refund,  where  the  latter 
voluntarily  paid  regardless  of  preferred  claims,  and  the  assets 
prove  deficient.^ 

§  445-  ^^hen  Heirs  or  Next  of  Kin,  etc.,  are  liable  for  Debts  of 
the  Deceased.  —  Apart  from  their  own  personal  undertaking, 
moreover,  heirs  and  next  of  kin  are  not  to  be  held  liable  for 
debts  of  a  deceased  person.  Where  they,  or  others  in  interest, 
are  held  responsible  at  all,  the  theory  is,  that  the  person  has 
received  property  through  the  deceased  which  was  fairly  subject 
to  the  prior  incumbrance  of  his  just  debts  and  the  usual  charges 
consequent  upon  his  death.  Statutes  which  provide  for  the  en- 
forcement of  such  inchoate  and  contingent  claims  as  may  accrue 
after  the  limited  period  for  settling  the  estate  are  framed  upon 
this  theory.3  And,  since  the  personalty  constitutes  the  primary 
fund  for  that  purpose,  no  liability  can  be  imposed  upon  heirs-at- 
lavv,  by  reason  of  their  inheritance,  save  upon  a  deficiency  of 
personal  assets.  The  general  doctrine  is  here  respected,  that 
one  person  cannot,  against  his  consent,  be  rendered  liable  out  of 
his  own  means  for  the  indebtedness  of  another.'' 

§  446.  Payment  of  Debts  and  Claims  where  the  Estate  proves 
Insolvent.  —  Where  the  decedent's  estate  is  found  insolvent,  the 
legal  priorities  among  claimants  should  be  strictly  observed  ;  and 
special  provision  is  made,  both  in  England  and  various  parts  of 
the  United  States,  for  a  fair  distribution  of  the  estate,  under  such 

'Heard    v.     Drake,    4    Gray,    514;  ' See  Walker  t'.  Ryers,   14  Ark.  246; 

Walker  v.  Hill,  17   Mass.  380;  Beatty  Mass.  Gen.  Stats,  c.  97. 

V.  Dufief,  II  La.  Ann.  74;  42  N.  J.  Eq.  ■*Selover».  Coe,  63  N.  V.  438.     For 

628.     But  cf.  Lawson  v.  Hausborough,  this    doctrine,   as  applied  to  surviving 

10  B.  Mon.  147.  husband  or  wife,  see    Schoul.   Hus.  & 

^Findlay   v.    Trigg,    83    Va.    539;  2  Wife,  Part  VIII.  cs.  i,  3. 
Rawle,  1 18. 

572 


CHAP.  I.J    DEBTS  AND  CLAIMS  UPON  THE  ESTATE. 


§  44^' 


circumstances.'     A  reasonable  time  is  allowed  after  one's  ap- 
pointment for  representing  the  estate  as  insolvent.'' 


'  See  supra,  §§  425,  435.  Embarrass- 
ing questions  often  arise  in  dealing  with 
the  insolvent  estates  of  deceased  per- 
sons ;  but,  as  statutes  of  this  character 
are  of  purely  local  origin  and  applica- 
tion, no  general  exposition  of  the  law 
appears  requisite,  beyond  what  is  else- 
where stated  of  the  precedence  of  claims, 
the  abatement  of  legacies,  marshalling 
assets,  and  creditors'  bills  in  chancery. 

In  modern  English  practice,  the  cred- 
itors' bill  in  chancery  has  become  the 
usual  resort  for  compelling  a  just  distri- 
bution of  assets  among  the  creditors  of 
a  deceased  insolvent,  as  already  indi- 
cated in  the  course  of  the  present  chap- 
ter. Wms.  Exrs.  1037  ;  sitpra,  §  437. 
See  19  Q.  B.  D.  92.  The  same  course 
must  be  pursued  in  various  American 
States,  where  chancery  jurisdiction  pre- 
vails, and  no  statute  modifications  have 
been  introduced.  A  bill  is  thus  brought 
to  marshal  assets  and  settle  the  estate. 

In  Massachusetts,  however,  the  exec- 
utor or  administrator  should  seasonably 
announce  the  fact  of  insolvency  to  the 
probate  court ;  and  upon  such  represen- 
tation (which  need  not  be  made  if  the 
estate  would  be  used  up  in  paying  pre- 
ferred claims)  the  probate  court  appoints 
commissioners  to  examine  all  claims 
which  may  be  presented.  These  com- 
missioners appoint  times  and  places  of 
meetings,  to  receive  claims,  examine 
claimants  upon  oath,  if  necessary,  liqui- 
date and  balance  all  mutual  demands, 
and  make  due  return  to  the  court ;  six 
months  being  the  time  usually  allowed 
for  proof  of  claims.  Upon  the  basis  of 
tJieir  return,  the  estate  is  adju.sted  under 
direction  of  the  probate  court,  appeal 
meanwhile  lying,  however,  on  behalf  of 
a  dissatisfied  creditor,  from  the  decision 
of  commissioners  to  the  temporal  courts. 
The  rules  of  procedure  in  insolvent 
estates  are  fully  detailed  in  the  statute, 

5 


concerning  whose  interpretation  there 
are  numerous  decisions.  See  Mass. 
Pub.  Stats,  c.  137;  Smith  Prob.  Law, 
3d  ed.  c.  13. 

New  York  surrogate  law  provides  for 
an  apportionment  in  case  of  deficiency; 
and  the  method  of  ascertaining  how  the 
pro  rata  dividend  shall  be  decreed  by 
the  surrogate  is  set  forth  by  the  chancery 
courts.  Redfield's  Surrogate  Practice, 
402;  Johnson  7A  Corbett,  11  Paige,  265. 
But  a  statutory  insolvent  system  appears 
not  to  prevail  in  that  State. 

The  statutes  of  various  New  England 
and  Western  States  adopt  substantially 
the  practice  of  Massachusetts,  in  rela- 
tion to  insolvent  estates,  which  tend,  of 
course,  to  relieve  the  personal  represen- 
tative from  much  of  the  responsibility 
of  settlement,  in  such  cases,  which  the 
English  chancery  methods,  still  retained 
in  many  of  the  older  States,  still  impose 
upon  him.  And  thus  the  executor  or 
administrator  is  not  required  to  deter- 
mine between  allowing  a  claim  against 
the  estate  or  taking  the  risk  of  expensive 
Uugation  in  regard  to  it.  A  summary 
and  comparatively  inexpensive  method 
of  adjusting  and  determining  the  in- 
debtedness is  provided.  And  instead 
of  employing  commissioners,  some  stat- 
utes direct  the  probate  judge  himself 
(at  all  events  in  estates  below  a  speci- 
fied value  in  assets)  to  perform  the  duty 
of  examining  and  passing  upon  the 
claims  presented.  See  supra,  §  434  ; 
Gary's  Probate  Law  (Wisconsin,  Michi- 
gan, Minnesota,  etc. ),  §  368  et  seq. 

Whether  the  representative  who  ig- 
norantly  pays  a  creditor,  and  then  finds 
the  estate  insolvent,  may  prove  the  debt 
in  the  name  of  the  creditor,  see  17 
Mass.  380;  Heard  v.  Drake,  4  Gray, 
514;  10  B.  Mon.  147. 

^See  local  codes  on  this  subject. 


73 


§  446^  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

§  446^.    Ancillary    and    Foreign    Administration ;    Payment    of 

Debts.  —  If  an  estate  be  settled  in  the  State  where  most  of  the 
decedent's  property  is  found,  the  administration  there  being, 
however,  only  ancillary,  a  creditor  is  not  required  to  go  there 
to  collect  his  claim.  And  if,  after  such  settlement,  property 
belonging  to  the  estate  comes  to  legatees  in  the  State  of  the 
testator's  domicile,  such  creditor  may  there  proceed  for  his 
dues.' 

§  446(^.  New  Assets  for  Payment  of  Debts.  —  As  a  general 
rule  no  property  can  be  considered  new  assets,  so  as  to  revive 
debarred  and  unsatisfied  claims,  which  has  been  in  the  hands 
and  under  the  control  of  the  executor  or  administrator,  or  has 
been  inventoried,  or  which  is  the  product  of  such  property,  al- 
though it  may  have  assumed  or  been  converted  into  a  new  form.'' 
But  what  are  properly  new  assets  may  be  applied  to  properly 
outstanding  claims.^ 

§  446^.  Buying  up  Claims,  etc.  —  While  an  executor  or  ad- 
ministrator should  not  speculate  nor  collude  with  others  for  his 
own  profit,  third  parties,  it  is  held,  may  lawfully  buy  in  debts 
of  the  estate  at  a  discount  and  collect  their  face  value  or  pur- 
chase the  claims  of  legatees,  where  no  fraud  appears,  and  the 
estate  proves  solvent."* 

§  446<^/.  Debts  for  continuing  a  Decedent's  Trade.  —  The  gen- 
eral rule  is  that  where  an  executor  or  administrator,  instead  of 
closing  out  his  decedent's  business  continues  it,  even  when  au- 
thorized by  will  to  do  so,  the  trade  debts  will  reach  only  the 
trade  assets  ;  or  in  other  words,  the  property  that  was  employed 
in  the  business,  or  that  was  the  result  of  doing  the  business. ^ 

'  Borer  v.  Chapman,  119  U.   S.  587.  generally  believed  insolvent,  when  let- 

And  see  §§  172-183.  ters  were  taken  out.     But  as  to  a  pur- 

^  Littlefield  v.  Eaton,  74  Me.  516.  chase  by  the  executor  or  administrator, 

^  See   Quincy  v.   Quincy,  167   Mass.  see  §358;  32  Ohio  St.  532. 

536.  5  Frey  t7.  Eisenhardt,   116  Mich.   160, 

••Owen   V.    Potter,    115     Mich.    556.  170;  Laible  z/.  Ferry,  32  N.  J.  Eq.  791. 

Here  the  estate  was  embarrassed  and  And  see  §§  325-327. 

574 


CHAP.   II.]  SPECIAL    ALLOWANCES.  §  448 


CHAPTER  II. 

SPECIAL  ALLOWANCES  TO  WIDOWS  AND  MINOR  CHILDREN. 

§  447-  "Wife's  Paraphernalia,  Separate  Property,  etc.,  do  not 
enter  into  Administration  of  Husband's  Estate.  —  The  surviving 
wife's  rights  should  be  studied  in  connection  with  the  law  of 
husband  and  wife,  which  is  well  known  to  have  changed  its 
whole  scope  and  bearing  since  the  common  law  defined  the 
rules  of  coverture  centuries  ago.  What  have  been  termed  the 
widow's  pamphcrnalia,  or  the  suitable  ornaments  and  wearing 
apparel  of  a  married  woman,  remaining  at  the  time  of  her  hus- 
band's death,  undisposed  of  by  him,  e.xist  as  hers,  by  exception 
to  the  old  rule  that  all  her  chattels  became  her  husband's,  while 
all  his  remaine"d  his  own.'  An  exception  of  far  wider  conse- 
quence, under  equity  decisions  and  the  recent  married  woman's 
legislation,  is  that  of  the  wife's  separate  property.^ 

§  448.  Widow's  Allowance  under  Modern  Statutes.  —  A  widow 
may  have  rights,  by  way  of  distribution  or  dower,  or  as  a  legatee 
or  devisee,  in  the  estate  which  her  husband  left  at  his  death. 
And,  furthermore,  we  are  to  observe,  that  as  a  claimant  for  the 
immediate  support  of  herself  and  the  young  children  of  her  de- 
ceased spouse,  modern  legislation  deals  liberally  with  her.  Let 
us  here  examine  her  rights  in  this  latter  aspect. 

The  statutes  relating  to  what  is  familiarly  known  as  the 
widow's  allowance  provide,  in  general  (though  with  variations  of 
language),  that  such  parts  of  the  personal  estate  of  a  person 
deceased  as  the  probate  court,  having  regard  to  all  the  circum- 

'  Schoul.  Hus.  &  Wife,  §431;  Com.  shall  belong  to  them  respectively.  Mass. 
Dig.  Baron  &  Feme,  Paraphernalia.  Gen.  Stats,  c.  96,  §  4.  Community 
Local  statutes  in  these  times  sometimes  property  set  apart  for  the  wife's  home- 
provide  expressly  that  the  articles  of  stead  does  not  constitute  assets.  120 
apparel  and  ornament  of  the  widow  and  Cal.  421. 
minor  children   of    a  deceased   person         ^  Schoul.  Hus.  &  Wife,  Part.  V. 

575 


§  449  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

Stances,  may  allow  as  necessaries  to  his  widow,  for  herself  and 
family  under  her  care,  shall  not  be  taken  as  assets  for  the  pay- 
ment of  debts,  legacies,  or  even  (to  follow  the  expression  some- 
times inaptly  used)  charges  of  administration.'  The  intent  of 
such  legislation  is  to  make  an  express  allowance  from  the  hus- 
band's estate  for  the  benefit  of  his  widow  and  minor  children, 
whenever  their  circumstances  require  it,  treating  their  immedi- 
ate necessities  as  paramount  to  the  claims  of  creditors.  It  is 
to  be  strictly  considered  as  an  allowance  out  of  the  decedent's 
personal  property  alone,  and  not  extending  to  real  estate  unless 
the  code  provides  accordingly  ;  ^  and,  in  general,  as  an  allowance 
to  be  made  whether  the  husband  and  father  died  testate  or  in- 
testate,^  and  as  a  temporary  and  reasonable  pro\'ision  merely.'* 

§  449-  'Wido'w's  AllovT^ance  ;  ■whether  confined  to  Cases  of  Dis- 
tress. —  To  relieve  immediate  distress  is  the  main  intent  of  such 
legislation  ;  tcj  provide  necessaries  for  a  widow  and  young  or- 
phans, as  far  as  may  be,  until  the  estate  is  fully  settled,  or  one 
can  make  other  arrangements  for  support. '  It  is  not  intended 
to  furnish  the  widow  with  a  capital  for  business  purposes,  nor  to 

'  Mass.   Gen.   Stats,  c.  96,  §  5.     And  been    left    to    the   widow.     Moore   v. 

see  Strawn  7'.  Strawn,  53  111.  263  ;  Sher-  Moore,  48   Mich.  271.     And  it  may  be 

man  v.  Sherman,  21  Ohio  St.  631  ;  other  made  although  the  husband  has  by  will 

cases  infra ;  Sawyer  v.  Sawyer,  28  Vt.  disposed  of   all.     Baker   v.   Baker,   57 

245.  Wis.    382.     Under   the    Iowa   code    a 

^  Paine  ?'.  Faulk,  39  Me.  15  ;   Hale  v.  court  may  make  an  allowance  or  set  off 

Hale,  I    Gray,  523.     But  cf.  152   Penn.  specific  property.     McReynold's  Estate, 

St.  63.     As  to  advice  by  the  represen-  61    Iowa,  585.     The  widow  of  a  non- 

tative,  see  75  N.  C.  47.  resident  cannot  claim  out  of  local  assets 

^  See,  however,    Mathes  v.   Bennett,  although  she  comes  into  the  ancillary 

I    Fo.st.    189;   Iowa  code.     As  for  re-  jurisdiction  after  her  husband's  death, 

stricting    to    the    amount    of    cash   in  97   N.  C.  112;  76  Ala.  521.     Nor  can 

hand,  see  113  Penn.  St.  11.     The  sum  proceeds  of  land  outside  the  jurisdiction 

of  Si,ooo  out  of  an  estate  of  $12,000  be  charged  with  the  widow's  allowance, 

is    excessive.     58    N.    H.    44.     Cf.    14  174  111.  52. 

Cal.  73.     But  where  mortgaged  realty         •*  Woodbury  v.  Woodbury,  58  N.  H. 

of    the    decedent    sold   for   less    than  44.     The  decedent's  will  may  scmble  ex- 

S200  above  the  mortgage  of  $100,  the  elude  such  allowance.  54  N.  J.  Eq.  632. 
widow  may  have  the  rest  to  the  exclu-        '  HoUenbeck  v.  Pixley,  3  Gray,  521  ; 

sion  of  a  tax  lien.     109   Penn.  .St.  75.  Foster  v.   Foster,  36  N.   H.  437  ;  165 

An  allowance  may  be  made  although  Mass.  157. 
there  are  no  children,  and  a  legacy  ha.'^ 

576 


CHAP.   II.]  SPECIAL    ALLOWANCES.  §  45O 

establish  a  fund  from  which  she  may  derive  a  permanent  in- 
come.' But  the  allowance,  though  evidently  designed  for  tem- 
porary relief,  is  not  confined  to  cases  of  absolute  and  permanent 
destitution  and  slender  estates ;  for  a  widow  who,  on  a  final 
division  of  the  estate,  is  likely  to  receive  a  considerable  com- 
petence, may  be  without  the  usual  means  of  comfortable  liveli- 
hood meanwhile;  and  such  cases  the  judge  appears  competent 
to  relieve.  Indeed,  in  some  States,  it  is  plainly  decided  that 
even  a  rich  widow  may  claim  the  allowance  ;  ^  and  that  the 
statute  provision  is  of  universal  application,  the  discretion  of 
the  court  extending  only  to  the  amount  of  the  provision.'  But, 
according  to  the  better  opinion,  an  allowance  may  be  refused 
where  no  good  reason  is  shown  for  granting  it.-* 

The  language  of  the  local  statute  is  of  consequence,  how- 
ever, in  determining  its  scope  and  purpose  ;  and,  in  some  States, 
the  allowance  is  so  purely  for  "present  support,"  that  it  may 
or  may  not  be  treated  as  part  of  the  widow's  share  in  her  hus- 
band's estate,  according  to  the  court's  discretion. s  That  the 
allowance  is  not  to  be  deemed,  in  any  sense,  as  the  judge's  gift, 
or  as  a  means  of  rectifying  any  apparent  injustice  to  which  one 
may  be  exposed  by  the  statute  of  distributions  or  the  testator's 
will,  appears  certain.^ 

§  450.  Maintenance  for  a  Particular  Period  sometimes  speci- 
fied. —  The  statutes  of  various  southern  States  provide  explicitly 
for  "a  year's  support,"  or  the  maintenance  of  widow  and  chil- 
dren for  one  year  out  of  the  deceased  husband's  estate.^  Such 
an  allowance  appears  to  be  properly  claimed,  as  such  statutes 
often  run,  by  any  widow  for  the  period  specified,  regardless  of 
her  other  means  of  support.^     But,  in  such  case,  the  property 

'  lb.  6  Foster   v.    Foster,  36   N.   H.  437  ; 

^  Strawn    v.     Strawn,     53    111.     263  ;  Hollenbeck  v.  Pixley,  3  Gray,  525. 

Thompson  v.  Thompson,  51    Ala.  493 ;  ^  Cole  v.   Elfe,  23  Ga.  235;  61    Ga. 

100  Cal.  593.  410  ;  I    Swan,  441  ;    Rocco  v.   Cicalla, 

3  Sawyer  t/.  Sawyer,  28  Vt.  245.  12    Heisk.  508;    Grant  v.   Hughes,  82 

■'  Hollenbeck  v.  Pixley,  3  Gray,  524  ;  N.  C.  216,  697. 

Kersey  v.  Bailey,  52  Me.  199.  ^  Wally  v.  Wally,  41  Miss.  657. 

'  Foster   v.   Foster,    36   N.   H.  437  ; 
Mathes  v.  Bennett,  i  Fost.  (N.  H.)  189. 

37  577 


§  45  I  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

actually  consumed  before  the  application  for  support  should  be 
taken  into  account ;  and  where  the  widow  has  lived  on  her  de- 
ceased husband's  estate  for  a  year  after  his  decease,  using  the 
property  at  her  discretion,  she  is  entitled  to  no  further  allow- 
ance.' In  lieu  of  the  year's  provision,  or  support,  a  sum  of 
money  may  sometimes  be  awarded.^ 

§  451.  Precedence  of  WidoTv's  Allowance  over  other  Claims; 
whether  independent  of  Distribution,  etc. ;  Effect  of  Decedent's 
Insolvency.  —  The  Statute  allowance  is  usually  accorded  priority 
over  all  claims  of  general  creditors  ;  it  is  sometimes  preferred 
even  to  the  expenses  of  administration  and  funeral ;  ^  though, 
in  practice,  a  probate  court  will  generally  reserve  enough  for 
these  prior  and  essential  charges.-*  Judgments  and  other  liens 
are  in  some  instances  regarded  as  subordinate ;  nevertheless,  a 
secured  creditor  is  not  to  be  thus  deprived  of  rights  which  he 
can  enforce  without  the  aid  of  an  administrator  or  executor. 

As  a  rule,  this  immediate  allowance  is  quite  independent  of 
one's  prospective  distributive  share,  legacy,  or  provision  under 
a  will ;  5  but,  while  a  mere  advancement  would  by  no  means 
meet  all  necessitous  cases,  the  court,  in  some  States,  may  at 
discretion  treat  the  allowance  to  a  widow  as  on  such  a  footing;^ 
which,  however,  appears  contrary  to  the  general  policy  of  such 
legislation. 7 

'  Blassingame  v.  Rose,  34  Ga.  418;  judgment  liens:  but  as  to  other  liens 
36  Ga.  194.  But  delay  in  taking  out  and  equities  she  takes  as  her  husband 
administration  beyond  a  year  from  the  held  it.  95  N.  C.  504.  The  widow- 
decedent's  death  does  not  necessarily  cannot  be  postponed  to  a  creditor's 
exclude  the  allowance.  Rogers,  £x  claim  by  either  court  or  administrator. 
paric',6^  N.  C.  no.  67   Iowa,  no.     And  if  the  widow  sur- 

-  Nelson    v.    Smith,    1 2     Sm.    &    M.  renders    exempt    property  to  her   hus- 

(Miss.)  662.  band's  creditors  where  the  estate  was 

'  Mass.  Gen.  Stats,  c.  96,  §  5  ;  Kings-  solvent  in  fact,  her  allowance  should  be 

bury  V.  Wilmarth,  5  Allen,  144.  made  her.     65  Wis.  551. 

••  Giddings  v.   Crosby,  24  Tex.  295  ;  ^  Mathes  v.  Bennett,  i  Fost.  (N.  H.) 

Elfe  V.  Cole,  26  Ga.  197.  189. 

'  Meech  z/.  Weston,  ^3  Vt.  561  ;  Fos-  ^  See  Davis  z'.  Davis,  63  Ala.  293. 

ter  V.  Fifield,  20  Pick.  67  ;  Haven's  Ap-  Statutes  do  not  always  give  the  wid- 

peal,  69   Conn.  684.     Such   allowance  ow's  allowance  a  priority  over  charges 

may  take  precedence  of  a  tax  lien.     109  and  expenses  of  administration,  funeral, 

Penn.  St.  75.     Of  general  creditors  and  etc.     McCord  z/.  McKinley,  92  111.   il. 


CHAP.    II.] 


SPECIAL    ALLOWANCES. 


§  451 


According  to  local  statutes  as  to  this  allowance,  must  appear 
the  bearing  of  the  decedent's  insolvency.  In  some  States,  pay- 
ing a  portion  of  the  assets  for  the  support  of  the  widow  and 
children,  when  the  estate  is  insolvent,  is  not  justified  ;  and,  cer- 
tainly, an  executor  or  administrator  could  not  do  so,  at  his  own 
tliscretion,  by  way  of  advancing  more  than  would  be  theirs  on 
a  final  settlement.'  On  the  other  hand,  in  States  which  confide 
the  amount  to  the  discretion  of  the  court,  and  accord  to  this 
allowance  an  express  precedence,  insolvency  is  no  barrier ;  and 
it  is  not  uncommon,  where  the  husband  has  died  insolvent,  leav- 
ing few  assets,  for  the  whole  of  the  personal  property  to  be  thus 
awarded  to  the  widow  (less,  perhaps,  the  necessary  preferred 
charges),  whereby  is  afforded  an  expeditious  means  of  settling 
a  small  and  embarrassed  estate.^ 


And,  as  to  administration,  it  is  certain 
tliat,  in  many  instances,  unless  adminis- 
tration was  granted  and  its  expenses 
paid,  there  would  be  no  fund  available 
for  making  the  widow's  allowance  from. 
Where  the  personal  estate  is  small, 
however,  it  may  be  awarded  to  the 
widow,  provided  there  is  real  estate 
which  may  be  sold  for  the  funeral  ex- 
penses, etc.  McCord  -'.  McKinley,  su- 
pra. 

'  Hieschler,  Re,  13  Iowa,  597. 

^  Buff  urn  V.  Sparhawk,  20  N.  H.  81  ; 
Brazer  v.  Dean,  15  Mass.  183  ;  Johnson 
~c'.  Corbett,  1 1  Paige,  265 ;  Hampson  v. 
Physick,  24  Ark.  562.  And  as  to  "a 
year's  support,"  see  Elfe  v.  Cole,  26  Ga. 
197;  Nelson  v.  Smith,  12  Sm.  &  M. 
662.  See  96  Cal.  584.  Excessive 
amount  reduced.  155  Mass.  141.  The 
fact  that  friends  relieve  by  their  charity 
does  not  debar  allowance.     155  Mass. 

153- 

The  nature  and  circumstances  of  this 
allowance  require  that  it  should  be 
pi-omptly  sought.  Ordinarily,  the  ap- 
plication should  be  made  as  soon  as  the 
inventory  of  the  estate  is  returned,  and 
the  court  has  the  means  of  judging  how 
much  should  be  granted.     Kingman  t'. 

57 


Kingman,  11  Post.  182.  And  it  should 
precede  the  full  administration  of  the 
assets.  The  petition  and  proceedings 
for  allowance  are  simple.  Notice  to 
the  administrator  or  executor,  as  one 
who  has  knowledge  of  the  actual  con- 
dition of  the  estate,  who  represents 
claimants,  and  must  pay  over  the  sum 
decreed,  seems  always  highly  proper; 
and  yet,  in  conformity  with  the  local 
statute,  an  ex  parte  proceeding  is  in 
some  States  clearly  sanctioned.  Morgan 
z\  Morgan,  36  Miss.  348 ;  cf.  Wright  v. 
Wiight,  13  Allen,  207.  The  allowance 
should  be  moderate,  and  according  to 
the  fortune  of  the  deceased  and  the 
necessities  of  the  petitioner.  The 
amount  of  the  widow's  separate  ])ro]) 
eity  and  means,  the  circumstance  that 
she  is  accu-stomed  or  able  to  earn  her 
own  support  or  the  contraiy,  the  num- 
ber and  respective  ages  of  her  children, 
— all  these,  as  well  as  the  value  of  the 
estate,  and  the  prospective  cUstribution, 
are  facts  for  the  court  to  consider,  as 
material  to  the  case.  Adams  v.  Adams, 
10  Met.  170;  Hollenbeck  v.  Pixley,  3 
Gray,  525 ;  Kersey  v.  Bailey,  52  Me. 
[98;  Duncan  v.  Eaton,  17  N.  II.  441. 
The   amount   suitable  by  way  of  rea- 

9 


§453 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


§  452.  Decree  of  Allowance,  etc.,  how  enforced.  —  The  allow- 
ance to  widow  and  children  being  duly  decreed,  the  executor  or 
administrator  in  charge  of  the  estate  should  make  payment  ac- 
cordingly, regarding  the  statute  dignity  of  the  claim,  and  charg- 
ing the  sum  in  his  account ;  otherwise,  the  claim  may  be  enforced, 
after  a  demand  and  refusal,  by  action  brought  by  the  claimant 
against  such  representative ; '  who,  if  at  fault  in  withholding 
payment,  ought,  it  seems,  to  be  personally  cast  for  the  costs. 
Payment  or  delivery  having  been  made  in  good  faith,  in  accord- 
ance with  the  decree,  the  executor  or  administrator  is  entitled 
to  have  credit  for  the  same  in  his  accounts."  A  claim  against 
the  decedent,  purchased  after  property  has  vested  in  the  widow 
l:)y  a  decree,  cannot  be  set  off  by  a  debtor  to  the  estate  against 
the  widow's  special  claim.^ 


§453.    Widow's    Allowance,    how    barred. —  Undue    delay   in 


sonable  allowance  is  decreed  accord- 
ingly at  the  judge's  discretion.  Statute 
.'sometimes  fixes  the  allowance.  Claudel 
7'.  Palao,  28  La.  Ann.  872. 

The  discretion  of  the  judge  of  pro- 
bate is  considered  a  legal  discretion,  to 
be  judiciously  exercised,  and  subject 
(except,  perhaps,  in  extreme  instances) 
to  the  revision  and  correction  of  the 
supreme  court.  Piper  v.  I'iper,  34  N. 
H.  563 ;  Cummings  f.  Allen,  34  N.  H. 
194;  Kersey  ?'.  Bailey,  52  Me.  198. 
Some  statutes  give  a  pemiissive  right  to 
the  petitioner,  in  case  the  decree  of 
allowance  is  appealed  from,  to  receive 
the  sum  upon  furnishing  a  bond  with 
.sureties  conditioned  to  repay  the  sum 
if  the  decree  is  reversed.  Mass.  Gen. 
Stats,  c.  94,  §§  9,  10. 

The  widow  may  have  a  second  al- 
lowance, provided  such  allowance  be 
just,  at  any  time  before  the  personal 
estate  is  exhausted.  Hale  v.  Hale,  i 
Gray,  518.  A  periodical  allowance  may 
be  diminished  by  the  judge  on  good 
cause,  but  not  retroactively.  Baker  v. 
Baker,  51  Wis.  538;  53  Iowa,  467. 

An   allowance,  as  it   is   held,  may  be 


granted,  although  provision  was  made 
for  the  widow  by  her  husband's  will  in 
lieu  of  dower,  and  accepted  by  her,  and 
although  the  executor,  being  also  resid- 
uary legatee,  has  given  bond  as  such  to 
pay  the  debts  and  legacies.  Williams 
7'.  Williams,  5  Gray,  24.  Nor  does  the 
fact  that  the  wife  has  a  separate  estate 
prevent  t  he  allowance ;  at  least  in  States 
where  such  estate  constitutes  in  law 
and  equity  no  fund  for  the  obligatory 
support  of  wife  and  minor  children. 
Thompson  v.  Thompson,  51  Ala.  493; 
Wally  V.  Wally,  41  Miss.  657.  Ques- 
tions concerning  the  contribution  made 
by  the  wife  to  the  marriage,  however, 
the  value  of  her  services  to  her  husband, 
and  the  like,  are  not  material  to  the 
present  issue,  which  is  one  of  actual  and 
present  needs,  con.sidering  the  actual 
personalty  left  to  supply  them.  Hollen- 
beck  V.  Pixley,  3  Gray,  525;  10  Met. 
170. 

'  Drew  V.  Gordon,  13  Allen,  120; 
Godfrey  v.  Getchell,  46  Me.  587. 

-  Richardson  r'.  Merrill,  32  Vt.  27. 

^  Haugh  V.  .Seabold,  15  Ind.  343. 


5  Ho 


CHAP.   IT.]  SPECIAL    ALLOWANCES.  §   454 

presenting  the  claim  for  allowance  cannot  be  permitted,  so  as 
to  injure  those  whose  rights  have  become  fully  fixed,  and  among 
whom  a  disbursement  of  assets  has  properly  begun.'  Miscon- 
duct of  the  wife,  such  as  adultery  or  desertion,  is  also  made  an 
express  bar,^  and  might,  otherwise,  be  taken  into  consideration 
as  determining  her  neccessities,  while  the  fact  of  leaving  her 
husband  with  apparent  justification  ought,  certainly,  not  to  pre- 
clude her  allowance.''  The  acceptance  of  a  distributive  share 
would  seem  to  be  inconsistent  with  the  claim  for  allowance.' 
Beneficial  provisions  under  a  will,  which  the  widow  does  not 
renounce,  are  held,  in  some  instances,  to  exclude  her  from  claim- 
ing the  allowance ;  especially  when  made  in  lieu  of  all  such 
claims. 5  But  the  release  of  all  claims  upon  her  husband's 
estate,  under  a  marriage  contract,  is  held  no  bar  to  a  widow's 
allowance.^  A  separation  deed,  followed  by  separation,  may 
debar,  and  so  may  a  marriage  settlement.''  Yet  actual  separa- 
tion, it  is  held,  is  not  conclusive  as  against  the  widow's  allowance, 
since  it  is  not  made  as  a  wife's  meritorious  reward  but  in  view 
of  her  actual  necessities.** 

§  454-  'Wido'w's  Allowance  ;  Effect  of  her  Death  or  Remarriage, 
etc.,  before  a  grant.  —  So  temporary  in  its  nature  and  so  personal 
in  its  character  is  this  widow's  allowance,  that  where  the  widow 
dies  before  it  is  granted,  the  allowance  is  lost,  even  though  pro- 
ceedings relative  to  the  grant  are  still  pending ;  nor  does  the 

'  See  Dease  v.  Cooper,  40  Miss.  114;  Reid  v.  Porter,  54  Mo.  265;  Riley  Ch. 

Kingman   v.   Kingman,    11    Fost.    182;  152.     Cf.  43  Neb.  463. 

cf.  Miller  z/.  Miller,  82  111.  463.  '' Blackington    v.    Blackington,    no 

^  Cook  V.  Sexton,  79  N.  C.  305;   132  Mass.  461.     And  see  Sheldon  v.  Bliss, 

Ind.  403.  4   Seld.  31  ;  Phelps  v.   Phelps,  72    111. 

3  Slack  ?'.  Slack,  123  Mass.  423.     See  545;  Pulling  v.  Duiiee,  85   Mich.   34. 

31  La.  Ann.  854.  But  see  Tierman  v.  Binns,  92  Penn.  St. 

''  So  the  acceptance  of  a  succession.  248. 

Claudel  v.  Palao,  28  La.  Ann.  872.  ^  As  to  litigation  on  such  points,  see 

'Turner   v.    Turner,    30    Miss.    428.  Speidel's  Appeal,  107  Penn.  St.  18;  66 

But  the  widow's  appeal  from  the  pro-  Iowa,  79;  38  Ark.  261;  151   Ind.  200. 

bate  of  a  will  does  not  estop  her  from  "  Chase  v.  Webster,   168  Mass.  228. 

claiming  her  allowance,  independently  Cf.  as  to  fault,  107  N.   C.  171.     As  to 

of  that   issue.     Meech  v.   Weston,    t,t,  her  remarriage,  cf.  117  Gal.  509;  98  Ga. 

Vt.  561.     As  to  a  direction  in  one's  will  366. 
that  his  family  be  provided  for,  etc.,  see 

581 


v^  455  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

right  survive  or  go  to  her  personal  representative.'  The  effect 
of  her  death,  after  a  decree  unappealed  from  has  estabhshed  her 
right,  absolutely  and  conclusi\'ely,  to  an  allowance,  appears,  on 
the  other  hand,  to  cause  this  right  of  property  to  pass  to  her 
personal  representatives.'  Remarriage,  too,  before  allowance, 
is  held  to  debar  her.^ 

But,  as  to  minor  children,  as  well  as  herself,  the  state  of  things 
when  her  husband  died,  is  usually  the  criterion  for  relief.'' 

§455.  Allowance  to  Minor  Children. —  Legislation  SUCh  as 
we  are  considering  not  only  provides,  however,  that  the  allow- 
ance to  the  widow  shall  be  for  herself  and  the  family  under  her 
care,  but,  in  some  States  makes  express  allowance  to  the  minor 
children,  in  case  there  is  no  widow.  Under  the  Massachusetts 
statute,  the  allowance  to  minor  children  shall  not  exceed  fifty 
dollars  for  each  child.'  Should  the  widow's  death  precede  the 
grant  of  an  allowance,  or  should  there  be  no  widow,  an  application 
on  behalf  of  the  minor  children  of  the  decedent,  if  there  be  any, 
may,  therefore,  be  properly  entertained.  Statutes  authorizing 
one  year's  support  likewise  give  the  children  the  right  to  apply 
by  guardian  for  the  provision,  on  the  death  of  the  widow.'' 
Where  minor  children  do  not  live  with,  and  are  not  maintained 
by,  the  widow,  the  probate  court  may  sometimes  apportion  the 
provision  for  the  benefit  of  all  concerned.^  Such  statutes  and 
their  rule,  the  representative  must  carefully  follow.** 

'Adams   v.    Adams,    10     Met.    171;  70    Ga.    733;    §  450.     Jiut   "children" 

Dunn,  .fjr/ffr/^,  63  N.  C.  137  ;  Tarbox  usually    means     "minor    children"   in 

V.  Fisher,  50  Me.  236.     The  Ohio  rule  such    connection.     70   Ala.   381.     And 

is  to  the  contrary.     Dorah  v.  Dorah,  4  "  grandchildren  "  may  be  included.     35 

Ohio  St.  292;  Bane  v.  Wick,   14  Ohio  La.  Ann.  371.     If  the  widow  dies,  her 

St.  505.     And  see  77  Ga.  232.  minor  children  may  have  a  year's  sup- 

^  Drew  V.  Gordon,  13  Allen,  120.  port  from  her  estate.    74  Ga.  795.    This 

3  Hamilton's  Estate,  66  Cal.  576.  allowance  .should  be  made  on  liberal. 

*  Hayes,  Re,  112  N.  C.  76.  not  on  narrow  lines,  as  in  keeping  young 

'  Mass.  Gen.   Stats,  c.  96,  §  5.     And  children  at  school  or  college,  if  the  con 

see  Lesher  v.  Wirth,  14  111.  39.  dition  of  the  estate  justifies  it.     Cheney 

^  Edwards  v.  McGee,  27  Miss.  92.  v.  Cheney,  73  Ga.  66.     As  to  vesting  a 

MVomack   v.   Boyd,    31    Miss.    443.  title  in  Georgia,  .see  68  Ga.  66,  64 1 .     A 

Family  allowance  for  a  year  inay  go  to  "family    allowance"    being    exhausted 

minor  children  where  there  is  no  widow,  which  was  granted  for  a  limited  period, 

*  See  144  Mo.  258. 

582 


CHAP.   II.]  SPECIAL    ALLOWANCES.  §  456 

§  456.  Specific  Articles  of  Personalty  allo'wed  Wido'w  and 
Children  ;  Exempt  Chattels,  etc.  —  American  Statutes  enumerate 
specific  articles  of  property,  in  connection  with,  or  as  a  substitute 
for,  the  money  allowance  to  widow  and  minor  children.  Thus, 
the  Massachusetts  act  excepts  from  assets  of  the  deceased,  in  ad- 
dition to  this  allowance,  "  such  provisions  and  other  articles  as 
are  necessary  for  the  reasonable  sustenance  of  his  family,  and 
the  use  of  his  house  and  the  furniture  therein,  for  forty  days 
after  his  death."  '  Their  own  articles  of  ornament  and  wearing 
apparel  are  expressly  confirmed  to  widow  and  minor  children  ;  ^ 
and,  under  some  codes,  the  widow  may  take  articles  of  personal 
property,  at  their  appraised  value,  to  a  stated  amount. ^ 

In  various. States,  the  widow  is  entitled  to  all  the  property  of 
her  deceased  husband  which  is  exempt  by  law  from  sale  on  ex- 
ecution.4  This  right  appears  to  exist  whether  the  estate  was 
testate  or  intestate,  solvent  or  insolvent,  and  so  that  the  exempt 
property  shall  not  go  to  the  executor  or  administrator  ;  but  the 
widow's  claim  is  usually  confined  to  exempt  property  of  her  late 
husband  which  remained  on  hand,  as  a  part  of  his  estate,  at  the 
time  of  his  death. 5 

All  such  property  going  directly  to  the  widow,  the  representa- 
tive who  converts  it  is  a  wrong-doer,  and  makes  himself  individ- 
ually liable  ;  ^  unless  he  is  required  to  take  a  temporary  charge 


the  widow  may  claim  more,  and  such  as  estate ;  but  the  local  statute  sometimes 

she  needs  while  the  estate  is  being  set-  extends  it  to  a  sort  of  special  gift  from 

tied.     67   Cal.  349.     And  see  105  Ga.  the  estate. 

305;  67  N.  H.  512.  ■'Thompson   z'.  Thompson,    51   Ala. 

'  Mass.  Gen.  Stats,  c.  96,  §  5.     And  493;  Taylor   v.    Taylor,  53    Ala.    135  ; 

see    Carter    v.    Hinkle,    13    Ala.    529;  Whitely  v.   Stevenson,   38    Miss.    113; 

Graves  v.  Graves,  10  B.  Mon.  41.     Ex-  Pride  z'.  Watson,  7  Heisk.  232  ;  92  Tenn. 

pressions  for  the  benefit  of  minor  chil-  715;   151    Penn.   St.  577  ;  79   Tex.  189. 

dren  are  found  in  such  codes.  '  Johnson  v.  Henry,  12  Heisk.  696. 

^  Mass.  Gen.  Stats,  c.  96,   §  4.     See  *  Carter    v.    Hinkle,    13    Ala.    529; 

"  paraphernalia,"  Schoul.  Hus.  &  Wife,  Morris  z/.  Morris,  9   Heisk.  814.     And 

§  431  ;  supra,  §  447.  see,  as  to  "marital  portion"  to  a  sur- 

^  Hastings   v.    Myers,    21    Mo.    519;  viving   spouse   in    necessitous    circum 

Bonds  v.  Allen,  25  Ga.  343 ;  Darden  z/.  stances,    Newman,    Succession    of,    27 

Reese,  62  Ala.  311  ;  Leib  z*.  Wilson,  51  La.  Ann.  593. 

Ind.  550;  Fellows  v.  Smith,  130  Mass.  As  to  what  the  code  gives  a  widow 

376.     Such  permission  is  presumably  to  as  "  head  of  the  family,"  see  Schaffner 
take  as  on  account  of  her  share  in  the 


§457 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


of  such  property,  as,  for  instance,  for  the  purpose  of  making  his 
inventory.' 


§  457.  Use  of  Dwelling  House;  Widow's  Quarantine.  —  The 
Magna  Charta  of  Henry  III.,  which  established  and  defined  the 
rule  of  dower,  made  a  special  provision  that  the  widow  might 
tarry  forty  days  after  her  husband's  death  in  her  husband's 
house.^  This  latter  privilege  has  since  been  known  as  the  wi- 
dow's quarantine,  a  right  preliminary  to  assigning  her  dower, 
and  has  been  expressly  recognized  by  statute  in  some  of  the 
United  States,  apart  from  its  existence  by  force  of  the  common 
law  alone  ;  ^  our  legislation  tending,  moreover,  to  afford  the 
same  shelter  to  the  minor  children,  and  to  extend  the  privilege 
to  the  use  of  the  furniture  therein,  and  the   consumption   of 


zj.  Grutzmacher,  6  Iowa,  137;  Paup  ?'. 
Sylvester,  22  Iowa,  371. 

Statutes  recogiiize  the  right  to  receive 
money  in  lieu  of  exempt  or  other 
specific  articles.  Reavis,  Ex  parte,  50 
Ala.  210. 

'  Voelckner  v.  Hudson,  i  Sandf.  215. 
The  administrator  cannot  pursue  such 
property.  Wilmington  v.  Sutton,  6 
Iowa,  44.  The  selection  of  property  by 
the  widow  vests  her  with  the  title  at 
once.     73  Ala.  542  ;   117  Ala.  432. 

The  right  in  Missouri  is  absolute,  and 
requires  no  election  on  her  part  to  take 
the  property,  and  her  husband  cannot 
dispose  of  the  property  against  her.  77 
Mo.  162. 

A  widow  may  select  a  watch  under 
the  Maryland  code  among  other  articles. 
62  Md.  560. 

As  to  provisions  relating  to  a  widow 
who  is  "  housekeeper,"  and  "head  of  a 
family,"  see  14  111.  39;  27  111.  129. 
And  as  to  "implements  of  industry," 
see  72  Mo.  656  ;  122  Cal.  434.  Spe- 
cific articles  to  be  set  apart  to  the  widow 
will  be  found  enumerated  in  certain 
codes.  York  v.  York,  38  111.  522  ;  Brig- 
ham  V.  Bush,  33  Barb.  596;  i  Sandf. 
(N.  Y.)  215.     Pennsylvania  statutes  pro- 


\dde,  after  a  peculiar  expression,  as  to 
the  retention  of  exempted  chattels  for 
the  comfort  of  the  widow  and  family, 
and  as  to  property  to  a  certain  value. 
I  Ashm.  314;  U.  S.  Dig.  ist  serie.s.  Ex- 
ecutors &  Administrators,  2712  ;  91 
Penn.  St.  34;  134  Penn.  St.  377.  By 
Texas  statute,  allowance  should  be 
made,  and  exempt  property  set  apart, 
by  the  court  without  any  request.  Con- 
nell  V.  Chandler,  1 1  Tex.  249. 

So  far  as  it  may  be  said  that  the  right 
to  specific  articles  under  a  statute  vests 
immediately  upon  the  death  of  the  hus- 
band, and  is  not  contingent  or  subject 
to  allotment  or  grant  under  the  court's 
direction,  the  right  to  these  articles,  on 
the  widow's  death,  without  receiving 
them,  devolves  upon  her  executor  or  ad- 
ministrator, who  may  pursue  the  prop- 
erty accordingly.  Hastings  v.  Myers, 
21  Mo.  519.  Such  articles  come  to  the 
wife,  not  through  the  husband's  will 
bestowing  all  of  his  estate  for  her  sup- 
port, but  by  virtue  of  the  statutes. 
Vedder  v.  Saxton,  46  Barb.  188. 

^  2  Bl.  Com.  135. 

'  Mass.  Gen.  Stats,  c.  96,  §§  4,5;  35 
Ala.  328;  Whaley  v.  Whaley,  50  Mo. 
577  ;  Craige  v.   Morris,  25    N.    J.    Eq. 

84 


CHAP.    11.] 


SPECIAL    ALI.OWANCKS. 


§  45  7'^ 


provisions  and  articles  necessary  to  sustenance.'  In  Ohio,  it  is 
held  that  the  widow's  statute  right  is  not  restricted  to  a  personal 
continuance  in  the  house,  and  that  she  may  rent  or  occupy  dur- 
ing the  statute  period,  as  may  best  promote  her  comfort.-  The 
statute  period  in  various  States  lasts  until  dower  is  assigned  to 
the  widow.3 

§  4S7^^-  ^'V'idow's  Election  to  take  against  her  Husband's  "Will. 
—  Our  local  statutes  enlarge  upon  the  old  doctrine  of  the  wi- 
dow's dower  (which  might  not  be  absolutely  willed  away  from 
her  by  her  husband)  by  allowing  the  widow  to  elect  formally  to 
take  under  or  against  her  husband's  will ;  and  what  she  shall 
take  in  the  latter  alternative  is  defined  by  the  same  local  stat- 
ute.-*    She  must  make  her  election  within  a  stated  time  —  such 


467  ;  Calhoun  v.  Calhoun,  58  Ga.  247 ; 
96  Ga.  374 ;  Young  ?'.  Estes,  59  Me. 
441;  Doane  t'.  Walker,  loi  111.  628  ;  11 
Paige,  265.  The  husband  ought  to 
have  been  in  actual  possession  of  such 
house.     56  N.  J.  Eq.  126;  50  N.  J.  Eq. 

325- 

■  Mass.  Gen.  Stats,  c.  96,  §§  4,  5. 

^  Conger  e'.  Atwood,  28  Ohio  St.  134. 
And  if  the  executor  or  administrator, 
in  disregard  of  the  widow's  right,  rents 
the  mansion  house,  she  is  entitled  to 
recover  the  rent  received  by  him  during 
the  statute  period  fixed  for  her  enjoy- 
ment of  the  premises.  lb.  But,  in 
Massachusetts,  absence  of  the  wife  from 
home  deprives  her  of  the  quarantine. 
Fisk  v.  Cushman,  6  Cush.  20.  In  In- 
diana a  widow  has  the  right  to  crops 
planted  and  harvested  within  the  year. 
81  Ind.  292  ;  Hoover  v.  Agnew,  91  Ind. 
370.  And  see  as  to  growing  crops,  39 
N.  J.  Eq.  506;  §  307. 

The  widow  in  possession  under  the 
New  Jersey  statute  giving  her  the  right 
to  hold  her  husband's  homestead  until 
dower  is  assigned  is  not  like  a  tenant 
for  life,  and  she  is  not  bound  to  keep 
down  interest,  pay  ta.xes,  or  make  neces- 
sary annual  repairs.     .Spinning  7/.  Spin- 


ning, 41  N.  J.  Eq.  427  ;  40  N.  J.  Eq.  30. 
If  she  receives  rent  she  should  account 
for  it,  and  is  credited  for  taxes  and 
repairs.  39  N.  J.  Eq.  506.  But  she 
should  pay  water  rates.  43  N.  J.  Eq. 
215. 

The  lien  of  a  mortgage  on  land  ap- 
pears not  to  be  affected  under  such 
.statutes.  Kauffman's  Appeal,  1 12  Penn. 
St.  645.  As  to  acts  of  the  widow,  hke 
selling  timber  and  building  a  new  house, 
see  27  W.  Va.  750;  72  Ga.  665. 

Whether  dower  can  be  claimed  in 
addition  to  what  is  provided  by  will  for 
the  widow,  see  (local  statute)  144  Mass. 
564;  Konvalinka  v.  Schlegel,  104  N.  Y. 

'-5- 

The  removal  of  the  children  by  their 
guardian  does  not  affect  the  widow's 
right  to  occupy.  Zoellner  v.  Zoellner, 
53  Mich.  620. 

^  Davenport 

341- 

*  Mathews  v.  Mathews,  141  Ma.ss. 
511  ;  39  Hun,  252  ;  Brokaw  v.  Brokaw, 
41  N.  J.  Eq.  304.  Dissent  from  the 
will  is  not  necessary  for  securing  the 
statutory  exemption.  Supra,  §  456 ; 
73  Ala.  578. 


Devenaux,   45   Ark. 


58s 


§  457^ 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V, 


as  a  year  or  less  —  or  she  shall  be  deemed  to  have  elected  to 
take  as  the  will  provides ;  and,  in  general,  lapse  of  time,  her 
conduct,  negative  as  well  as  positive,  may  properly  debar  her 
from  electing.'  But  the  widow  is  not  bound  by  her  election 
made  in  ignorance  of  the  facts  which  should  influence  it.^  She 
cannot  waive  provisions  in  her  husband's  will  which  are  not 
solely  for  her  benefit ;  ^  nor  can  she  elect  partly  to  accept  and 
partly  to  reject  what  the  will  offers  her.-* 


'  Hovey  v.  Hovey,  6i  N.  H.  599. 
The  widow  may  thus  elect  to  take 
dower  rather  than  the  statute  Hfe-interest 
in  one-half  the  estate,  real  and  personal. 
Mathews  v.  Mathews,  supra.  See  43 
W.  Va.  226. 

As  to  her  election  of  a  homestead  in 
lands,  see  Davidson  -/.  Davis,  86  Mo. 
440. 

Where  a  widow  is  of  unsound  mind, 
the  court  in  her  interest  may  elect  for 
her.  Penhallow  7-.  Kimball,  61  N.  H. 
596 ;  Van  Steenwyck  v.  Washburn,  59 
Wis.  483.  As  to  recalling  assent,  and 
then  electing  against  the  will,  see  97 
N.  C.  236;  149  Ind.  363. 


-  Elbert  ?■.  O'Neil,  102  Penn.  St.  302. 

3  Leonard  -'.  Haworth,  171  Mass. 
496. 

••  Crawford  v.  Bloss,   114   Mich.  204. 

The  widow's  right  of  election  is  purely 
personal,  and  cannot  be  exercised  by 
others  after  her  death.  185  Penn.  St. 
174.  She  is  bound  by  her  acceptance 
of  any  provision  expressly  made  "  in  full 
satisfaction  and  recompense."  140 
N.  V.  421;  66  Vt.  46.  Cf.  99  Mich. 
128. 

A  widow  who  has  elected  against  such 
will  is  debarred  from  attacking  in  equity 
chattel  transfers  made  in  her  husband's 
lifetime.     143  Mass.  340. 


586 


CHAP.   III.]  LEGACIES.  §  459 


CHAPTER  III. 

LEGACIES,  THEIR  NATURE  AND   INCIDENTS. 

§  458.  This  Subject  a  Branch  of  the  Law  ofWills.  —  The  sub- 
ject of  legacies  is,  properly  speaking",  a  branch  of  the  law  of  wills ; 
and,  to  general  treatises  on  wills,  the  reader  is  referred  for  a 
detailed  treatment  of  the  subject.  Many  intricate  problems 
arise  in  the  equity  courts  under  this  head,  which  an  executor  or 
administrator,  as  such,  may  never  be  required  to  solve ;  but, 
where  embarrassment  arises  in  the  interpretation  of  a  testamen- 
tary trust,  they  who  administer  that  trust,  whether  trustees  or 
executors,  must  seek  competent  legal  advice.  The  plain  direc- 
tions of  a  well-drawn  and  simple  will  are  to  be  pursued  according 
to  the  testator's  manifest  wishes,  and  after  a  plain  and  common- 
sense  fashion ;  and  even  the  close  and  subtle  analysis  which 
acute  judicial  minds  have  given  to  the  most  complicated  of  tes- 
tamentary provisions,  proceeds,  after  all,  upon  the  common-sense 
principle  that  the  testator's  just  intentions  should,  if  possible, 
prevail. 

It  may  be  advantageous,  however,  to  set  before  the  reader  the 
nature  of  legacies  and  their  chief  incidents  ;  for,  to  this  extent, 
at  least,  every  executor  should  make  himself  familiar  with  this 
interesting  topic  of  our  jurisprudence.' 

§  459-  Legacy  defined;  Executor  under  a  Will  should  pay  or 
deliver ;  Legacy  to  Satisfy  Debt.  —  A  legacy  is  a  gift  or  dis- 
position in  one's  favor  by  a  last  will.  We  commonly  apply  the 
word  to  money  or  other  chattel  gifts,  though  a  broader  reference 
is  not  inappropriate ;  "bequest"  being  the  more  precise  term 
for  a  testamentary  gift  of  personalty.^     Next  to  seeing  that  all 

'See    I    Jarm.    Wills;    Wms.    Exrs.     as    "some   paiticulai'   thing   or   things 

1051,  etc.  given  or  left,  either  by  a  testator  in  liis 

''A  legacy  is   defined  by  fiodolphin     testament  wherein  an  executor  is  ap- 


§  46o 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


just  debts  and  charges  are  amply  provided  for,  one  who  adminis- 
ters under  a  will  should  attend  to  the  payment  or  delivery  of 
legacies  in  accordance  with  law  and  the  last  wishes  of  his  tes- 
tator. 

While,  by  "legacy,"  our  law  signifies  a  testamentary  dispo- 
sition ;  and  every  testamentary  disposition  is  admitted  to  be 
ambulatory,  and  revocable  by  the  testator  during  the  testator's 
natural  life  ;  it  does  not  follow  that  a  legacy  is  necessarily  devoid 
of  consideration.'  In  fact,  a  legacy  is  sometimes  left  in  satisfac- 
tion of  a  valid  debt  owing  by  the  decedent  ^  or  upon  other  con- 
sideration ;  though  the  presumption  is  that  one  gives  by  will  as 
a  bounty. 

§  460.  Description  of  the  Legatee,  and  who  may  be  such.  — 
Various  classes  of  persons  have  been  treated  as  disqualified 
from  receiving  legacies  under  English  statutes  ;  the  list  being 
quite  similar  to  that  which  pertains  to  the  office  of  executor.^ 
Prohibited  classes,  however,  must  be  defined  by  law  ;  ■♦  for  every 


pointed,  to  be  paid  or  performed  by  his 
executor,  or  by  an  intestate  in  a  codicil 
or  last  will,  wherein  no  executor  is  ap- 
pointed, to  be  paid  or  performed  by  an 
administrator."  Godolph.  pt.  3,  c.  i, 
§  I,  cited  Wms.  Exrs.  1051. 

'  3  Abb.  App.  411. 

'  See  §§  432,  469,  490. 

3  Supra,  %  35. 

■*  The  fundamental  terms  of  its  creation 
are,  as  to  every  corporation,  properly 
resorted  to  for  determining  its  legal  ca- 
pacity to  take,  as  legatee  or  devisee ;  the 
main  difficulty  being  to  adjust  the  weight 
of  presumptions  properly  where  those 
terms  have  not  been  clearly  expressed. 
It  is  not  essential  that  the  corporate 
organization  be  complete  or  final  when 
the  testamentary  provision  takes  effect ; 
but  associations  clearly  identified,  may, 
like  two  or  more  persons,  stand  entitled 
to  a  bequest ;  and  such  association  may 
procure  afterwards  an  act  of  incorpora- 
tion from  the  legislature  in  confirmation 
of  its  right.     Nye  v.   Bartlett,  4  Met. 

5 


378  ;  Zimmerman  v.  .\nders,  6  W.  &  S. 
218 ;  England  v.  Prince  George's  Vestry, 
53  Md.  466.  So,  too,  a  corporation 
named  as  legatee  or  devisee  not  unfre- 
quently  resorts  to  the  legislature,  after 
the  death  of  the  testator,  but  before  the 
money  is  payable,  to  procure  such 
amendment  of  its  charter  as  may  clearly 
remove  all  restraint  upon  its  capacity  to 
take  the  benefits  of  the  will  in  question. 
See  Wms.  Exrs.  1052,  Perkins's  note; 
4  Dem.  271.  A  corporation's  right  to 
take  by  will  is  subject  to  the  general 
laws  of  the  State  passed  after  the  incor- 
poration. Kerr  v.  Dougherty,  79  N.  Y. 
327.  And  see  England  v.  Parish  Vestry, 
53  Md.  466. 

Corporations,  public  or  private,  are 
not  so  readily  presumed  capable  of  tak- 
ing lands  under  a  will  as  personal  prop- 
erty; the  rule  of  policy  is  different  in 
the  two  instances,  and  the  law  of  situs 
prevails  as  to  land.  It  is  held,  in  con- 
struction of  the  New  York  statute,  that 
a  devise  of  lands  in  New  York  to  the 

88 


CHAP.  III.] 


LEGACIES. 


§  461 


person  is  capable  of  taking  a  legacy  as  a  rule,  excepting  such  as 
are  thus  expressly  forbidden.'  Even  an  unborn  child  may  by 
proper  designation  under  the  will  be  made  a  legatee.^ 


§  461.  Subject-Matter  of  Legacies;  Specific  distinguished  from 
General  Legacies.  —  All  legacies  are  either  goieral  or  specific. 
A  general  legacy  is  one  which  docs  not  necessitate  delivering 
any  particular  thing  or  paying  money  out  of  any  i)articular  por- 
tion of  the  estate.  But  a  si)ecific  legacy  is  the  converse  of  this  ; 
or  where  a  particular  thing  must  be  delivered,  according  to  the  'v 
terms  of  the  bequest,  or  money  paid  out  of  some  particular  por-  *^ 
tion  of  the  estate.^ 


x^ 


government  of  the  United  States  is  void. 
United  States  v.  Fox,  94  U.  S.  Supr. 
315  ;  Fox,  Matter  of,  52  N.  Y.  530.  But 
the  bequest  to  the  United  States,  whence 
was  derived  the  Smithsonian  Institution, 
was  sustained  in  the  English  chancery 
courts,  this  being  a  bequest  of  personal 
property.  The  New  York  statute  pro- 
vides that  a  devise  of  lands  in  that  State 
can  only  be  made  to  natural  persons, 
and  to  such  corporations  as  are  created 
under  the  laws  of  that  State,  and  are 
authorized  to  take  by  devise. 

'  I  Roper  Legacies,  28 ;  Wms.  Exrs. 
7th  ed.  1052.  Among  persons  formerly 
disqualified  at  English  law  were  those 
who  denied  the  Scriptures,  traitors,  and 
artificers  going  abroad.  Such  disquali- 
fications have  no  application  to  the 
United  States,  and  the  modern  sense 
condemns  them. 

In  England,  it  was  decided  (2  Stra. 
1253)  that  a  subscribing  witness,  who 
derived  any  legacy  under  the  will  for 
himself  or  his  wife,  was  thereby  rendered 
incompetent  by  reason  of  interest,  and 
that  the  will  must  consequently  fail 
unless  there  appeared  the  requisite 
number  of  witnesses  without  him. 
Statute  25  Geo.  II.  c.  6,  however,  pre- 
served the  competency  of  the  subscrib- 
ing witness  by  declaring  his  legacy 
void ;  and  similar  acts  have  been  passed 


in  most  American  States.  Wms.  Exrs. 
1053;  Schoul.  Wills,  §357.  See  also 
Stat.  I  Vict.  c.  26,  §  15. 

As  to  aliens,  infants,  insane  persons 
and  married  women,  modern  law  and 
practice  favors  their  right  to  become 
legatees,  i  Jarm.  Wills,  3d  Eng.  ed. 
70;   Wms.  Exrs.  1054. 

^Chambers  v.  Shaw,  52  Mich.  18; 
57  Mich.  265.  A  devise  to  grandchil- 
dren, the  immediate  issue  of  persons  in 
being  at  the  time  of  a  \i^\\,  is  valid. 
McArthurw.  Scott,  113  U.  S.  340.  And 
see  §  465.  But  in  Connecticut  and  New 
York  a  devise  to  persons  who  may  not 
be  in  being  at  the  testator's  death,  and 
who  may  not  be  the  immediate  issue  of 
persons  then  in  being,  is  pronounced 
void.  Wheeler  v.  Fellows,  52  Conn. 
238. 

^  I  Roper  Legacies,  170;  Wms.  Exrs. 
1158.  "A  specific  legacy,"  says  Lang- 
dale,  M.  R.,  "is something  distinguished 
from  the  rest  of  the  testator's  estate; 
and  it  is  sufficient  if  it  can  be  specified 
and  distinguished  from  the  rest  of  the 
testator's  estate  at  the  time  of  his  de- 
cease." 3  Beav.  342.  There  is  an  in- 
termediate sort  of  legacy  known  as  the 
"  demonstrative  legacy,"  according  to 
writers  on  the  law  of  Wills.  Wms.  Exrs- 
1 160;  4  Ves.  555.  But  the  two  main 
classes  are  as  stated  above ;  while  it  is 


589 


§  461  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

Thus,  if  a  testator  bequeaths  to  A.  a  horse  or  a  gold  ring, 
this  indefinite  expression  constitutes  a  general  legacy  ;  for  we 
may  infer  that  the  executor  is  left  free  to  procure  something 
which  shall  answer  that  description  out  of  the  funds  in  his  hands, 
provided  none  be  left  at  the  testator's  decease.  But,  if  the  be- 
quest is  expressed,  "  my  roan  horse,"  "  the.  gold  ring  which  C.  D. 
gave  mc,"  or  (with  reference,  not  to  a  present  possession,  but 
possession  at  the  time  of  one's  decease)  "  whatever  horses  shall 
be  in  my  stable,"  or  "  all  the  books  which  may  be  in  my  library," 
or  "  all  the  furniture  which  shall  be  contained  in  my  dwelling- 
house,"  this  legacy  is  a  specific  one.'  Or,  to  proceed  with  the 
distinction,  should  a  testator  bequeath  $10,000  in  the  public 
funds,  or  $10,000  in  first-class  railroad  bonds,  or  simply  $10,000, 
the  legacy  would  be  general ;  while,  on  the  other  hand,  the  be- 
quest of  $10,000,  "of  my  stocks  in  the  public  funds,"  or  "of 
my  railroad  bonds,"  answering  such  a  description,  or  of  "  $1,000 
out  of  my  savings-bank  deposit  in  B.,"  it  will  be  held  specific. 
To  the  latter  class  belongs  a  bequest  of  all  the  stock  in  the 
])ublic  funds,  all  the  first-class  railroad  bonds,  or  all  the  savings- 
bank  deposits  to  which  the  testator  may  be  entitled  at  the  time 
of  his  death  ;  and  so,  too,  with  any  designated  portion  thereof.^ 
A  specific  legacy  may  be  given  under  a  will,  with  the  substitu- 
tion besides  of  a  general  pecuniary  legacy  in  case  of  its  failure, 
to  be  satisfied  in  a  specific  manner.^  The  balance  of  a  partner- 
to  be  remembered  that  their  several  in-  189;  Johnson  v.  Gross,  12S  Mass.  433 ; 
cidents  are  variable  according  to  a  tes-  1  Roper  Leg.  170;  Fontaine  v.  Tyler, 
tator's  declared  w-ishes.  See  Pratt  /^e,  j///;-(/ ;  Herring?/.  Whittam,  2  Sim.  493  ; 
(1894)  I  Ch.  491.  Where  one  be-  P'oote,  Appellant,  22  Pick.  299.  vSpe- 
queaths  all  personalty  to  C.  with  specific  cific  bequests  of  money  are  not  fre- 
exceptions,  C.'s  legacy  is  general;  be-  quent ;  but  such  a  bequest  may  be  made 
quests  of  money  to  each  of  certain  per-  as  out  of  a  certain  place  of  deposit,  or 
sons  are  general ;  but  the  specific  chattels  from  a  fund  placed  in  a  certain  person's 
excepted  from  C.'s  legacy  and  specifi-  hands,  or  of  money  arising  out  of  a  par- 
cally  given  to  B.  constitute  a  specific  leg-  ticular  security.  Lawson  v.  Stitch,  i 
acy  to  B.  Kelly  z/.  Richardson,  100  Ala.  Atk.  507  ;  Perkins  v.  Mathes,  49  N.  H. 
584.  107. 

'  lb.;  Fontaine  v.  Tyler,  9  Price,  94.  '  Fontaine  v.  Tyler,  9  Price,  94. 
See  also  §  381.  There  may  be  a  bequest  of  shares  in  the 

^  Bothamley  v.  Sherson,  L.  R.  20  Eq.  capital  stock  of  a  joint  stock  company, 
304;  Wnis.  Exrs.  1162,  and  Perkins's  although  the  testator  held  stocks  of  the 
note;  Ludlam's    Estate,    13    Penn.    St.     denomination  in  excess  of  the  bequest. 


CHAP.   III.]  LEGACIES.  §  46 1 

ship  settlement  not  drawn  out  of  the  concern,  or  the  good-will 
of  a  business,  may  be  specifically  bequeathed,  in  whole  or  in 
part ;  '  and  so  may  a  debt  or  claim  in  favor  of  the  estate  ;  ^  and 
insolvency  of  the  concern  or  of  the  debtor  renders  the  legacy 
worthless. 

It  should  be  observed,  however,  that  no  direction  out  of  what 
fund  the  legacy  shall  be  raised  will  render  that  legacy  specific, 
unless  the  clear  intent  was  to  transfer  all  or  a  part  of  the  same 
identical  fund.^  Nor  will  a  legacy  be  rendered  specific,  by  direc- 
tions incidental  to  a  general  bequest ;  such  as  a  certain  sum  of 
money  to  be  laid  out  in  mourning  rings;  or  $i,ooo  to  recom- 
pense the  executor,  or  for  charity,  or  to  be  invested  in  a  pre- 
scribed class  of  securities,  or  payable  in  cash.'*  A  reference,  on 
the  other  hand,  to  the  fact  of  one's  death  for  ascertaining  his 
legacy  —  as  in  the  bequest  of  "  all  the  horses  which  I  may  have 
in  my  stable  at  the  time  of  my  death  "  —  does  not  render  the 
gift  other  than  specific.^ 

One  important  consequence  of  this  distinction  between  gen- 
eral and  specific  is,  that,  should  the  assets  prove  deficient,  gen- 
eral legacies  must  abate,  while  a  specific  legacy  does  not;^  and, 
on  the  other  hand,  should  the  specific  legacy  fail,  or  come  short, 
for  want  of  the  identical  things  described,  the  legatee  can  claim 
no  satisfaction  out  of  the  general  personal  estate. ^  In  some 
instances,  therefore,  the  specific  legatee  is  the  better  off,  and 
in  others  the  worse.  Since,  however,  specific  bequests,  on  the 
whole,  interfere  with  a  just  and  uniform  settlement  of  an  estate 
as  one  whole,  courts  of  equity  lean  against  pronouncing  legacies 
specific  in  doubtful  cases.^     Nevertheless,  testamentary  inten- 

Norris?/.  Thomson,  2  McCarter  (N.  J.)  i  Atk.  507;  Edwards  v.  Hall,  11  Hare, 

493.  See  legacy  of  less  stock  than  one  23 ;  Apreece  v.  Apreece,    1  Ves.  &   B. 

owned  construed  as  a  pecuniary  legacy,  364. 

in  Mahoney  v.  Holt,  19  R.  I.  660.    And  '  Bothamley?'.  Sherson,  L.  R.  20  Eq. 

see  Nottage  Re,  (1895)  2  Ch.  657.  ^Of),  per  Jessel,  M.  R. 

'  Ellis  V.  Walker,  Amb.  309  ;  Fryer?/.  *  Except  for  creditors  as  a  last  resort. 

Ward,  31  Beav.  602.  §  490. 

^  2  Del.  Ch.  200 ;  Farnum  v.  Bascom,  '  See  post  as   to   the  ademption  of 

122  Mass.  282.  legacies;  Wms.  Exrs.  1159. 

^  2  Redf.  Wills,  135.  '  See    Lord    Chancellor   in    Ellis   v. 

*  lb.;  W'ms.  Exrs.  1162;  Richards 57.  Walker,  Amb.  309;  Wms.  Exrs.  1160. 
Richards,  9  Price,  226 ;  Lawson  v.  Stitch, 


§  463  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

tion  shall  prevail,  if  duly  expressed  ;  and  so  clearly  separable  in 
sense  is  a  specific  from  a  general  legacy,  that  even  though  the 
testator  should  expressly  provide  against  the  ademption  of  a 
legacy  specifically  identified  in  his  will,  such  legacy  is  not 
thereby  rendered  a  general  one,  and  denuded  of  its  other  pecu- 
liar incidents.' 

§  462.    Whether  a  Residuary  Bequest  can  be   deemed   Specific. 

—  The  bequest  of  all  one's  personal  estate,  or  the  devise  and 
bequest  of  all  the  residue,  both  personal  and  real,  cannot  be 
treated  as  specific  ;  but  such  a  disposition,  from  its  own  terms, 
is  general  and  residuary,  and  subject  to  the  usual  payment  of 
debts  and  legacies.^  Nor  is  a  general  residuary  clause  to  be 
otherwise  construed,  merely  because  some  of  the  particulaFS-of 
which  it  shall  consist  are  enumerated  in  the  wdll.^  But  there 
may  be  a  specific  bequest  of  all  one's  estate  in  a  particular  lo- 
cality ;•♦  so,  too,  the  bequest  of  what  shall  remain  of  a  specific 
and  identical  thing  or  fund,  after  other  legacies  enumerated 
shall  have  come  out  of  it,  or  specified  incumbrances  are  removed, 
may  be  specific,  so  long  as  the  directions  be  capable  of  fulfil- 
ment without  destroying  the  identity  of  the  thing  or  fund  itself.^ 

§  463.  Bequests  for  Illegal  and  Immoral  Purposes  void;  Super- 
stitious Uses,  etc.  —  A  bequest  to  further  and  carry  into  effect 
any  illegal  purpose,  which  the  law  regards  as  subversive  of 
.sound  policy  or  good  morals,  and  destructive  to  the  fundamen- 
tal institutions  of  society  and  the  civil  government,  whether  by 
disseminating  such  writings  or  otherwise,  will,  on  general  princi- 
ple, be  held  void ;  and  the  executor  is  not  justified  in  paying  it." 
Men's  ideas  as  to  civil  polity  or  follies  of  belief  are  by  no  means 
immutable,  however. 

Whenever  a  charitable  intent  appears  on  the  face  of  the  will, 
but  the  terms  used  are  broad  enough  to  allow  of  applying  the 

'  2  Coll.  435.  '  lb. 

^  See  Wms.  Exrs.  1172-1177;  Fairer  "2    Beav.    151;  2    My.  &   K.  697;  i 

V.  Park,  L.  R.  3  Ch.  D.  309.  Salk.    162;  Habe.shon  7/.   Vardon,  7  E. 

3  Taylor  v.  Taylor,  4  Hare,  628.  L,  &  Eq.  228. 

*  Nisbett  V.   Murray,   5   Ves.   1 50  ;  2 
Vern.  688;  Wms.  Exr.s.  1172. 


CHAP.    III.]  LEGACIES.  §  464 

fund  either  in  a  lawful  or  unlawful  manner,  the  gift  will  be  sup- 
ported, and  its  application  restrained  within  the  bounds  of  law.' 
'And,  where  some  bequests,  in  a  duly  probated  will,  are  invalid, 
and  must  fail,  the  valid  provisions  should  nevertheless  be  exe- 
cuted.^ 

§  464.    Bequests  to   Charitable  Uses ;   Statute  of   43  Elizabeth, 

c.  4.  —  Gifts  to  charitable  uses  had  their  origin  in  the  Christian 
dispensation,  and  are  found  regulated  by  the  Justinian  code.^ 
Our  English  law  on  this  subject  is  controlled  by  the  stat.  43 
Eliz.  c.  4.^  Since  this  enactment,  English  courts  of  equity  have 
treated  charitable  bequests  as  properly  restricted  to  the  pur- 
poses therein  enumerated,  and  to  such,  besides,  as  by  analogy 
may  be  deemed  within  its  spirit  or  intendment.  "  Charitable 
use  "  is  a  term  not  easily  defined  ;  nor  does  the  statute  of  43 
Eliz.  define,  but  rather  illustrates  by  instances  such  as  might 
vary  from  age  to  age.  Lord  Camden's  definition,  often  quoted, 
that  a  gift  to  charity  is  "  a  gift  to  a  general  public  use,  which 
extends  to  the  poor  as  well  as  to  the  rich,"  5  seems  to  touch  the 

'  Gray,  J.,  in  Jackson  v.  Phillips,   14  *  i  Jarm.  (ed.  1861),  192.     This  stat- 

AUen,  556.  ute  specifies  the  following  gifts  as  chari- 

^  Bent's  Appeal,  38  Conn.  26.  table:'  For  the  relief  of  aged,  impotent, 

As  to  bequests  for  "superstitious  and  poor  people;  for  the  maintenance 
uses,"  so  called,  the  policy  of  our  law  of  sick  and  maimed  soldiers  and  mari- 
has  greatly  changed  in  the  course  of  ners ;  for  schools  of  learning,  free 
two  centuries,  consistently  with  the  ad-  schools  and  scholars  in  universities; 
vance  of  religious  toleration.  See,  in  for  the  repair  of  bridges,  ports,  havens, 
detail,  Wms.  Exrs.  1055.  A  legacy  by  causeways,  churches,  sea-banks,  and 
a  Roman  Catholic  for  masses  for  the  highways ;  for  the  education  and  pre- 
repose  of  his  soul,  etc.,  is  frequently  ferment  of  orphans  ;  for  the  relief,  stock, 
pronounced  lawful  at  this  day.  2  Dem.  or  maintenance  for  houses  of  correction ; 
87;  Schouler,  Petitioner,  134  Mass.  426.  for  the  marriages  of  poor  maids;  for 
But  the  older  cases,,  and  especially  the  the  supportation  and  help  of  young 
English  ones,  condemn  such  gifts  as  for  tradesmen,  handicraftsmen,  and  persons 
superstitious  uses.  West  v.  Shuttle-  decayed ;  for  the  relief  or  redemption 
worth,  2  My.  &  K.  684.  Legacies  for  of  prisoners  or  captives ;  for  the  aid  or 
circulating  the  religious  writings  of  ease  of  poor  inhabitants ;  and  concern- 
Jews  and  dissenters,  or  for  the  benefit  ing  payment  of  fifteens,  setting  out  of 
of  their  churches  and  ministers,  have  soldiers  and  other  ta.xes. 
been  annulled  in  former  centuries,  which  ^  Jones  v.  Williams,  Amb.  651. 
would  not  be  in  the  present  era  of  en-  Sometimes  incorrectly  ascribed  to  Lord 
lightenment  and  toleration.  Hardwicke,  the  reporter  failing  to  des- 

^  Code  Just.  I.  3.  ignate  clearly  the  individual. 

38  593 


§  465  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

vital  point ;  namely,  that  the  private  benefaction  should  be  well 
designed  to  promote  some  public  object  of  utility.  Where  such 
is  the  case,  the  disposition  of  English  chancery  has  constantly 
been  to  bring  the  bequest  by  analogy  within  the  purview  of  the 
statute,  even  though  literal  interpretation  might  have  excluded  it. 

In  this  liberal  sense,  gifts  to  charitable  uses  are  likewise  sus- 
tained in  all  or  most  of  the  American  States ;  our  equity  courts 
resting  their  jurisdiction  upon  this  statute,  as  part  of  the  law  of 
England  which  the  first  settlers  brought  over  with  them ;  or 
else  deriving  it  from  that  earlier  common  law  founded  in  the 
precepts  of  the  Christian  religion,  and  the  divine  injunction  that 
love  of  God  be  manifested  in  the  love  of  our  fellow-men,  —  which 
such  enactments  serve  only  to  explain  and  apply.' 

The  definiteness  or  indefiniteness  of  these  charitable  trusts 
is  sometimes  an  important  element  in  determining  the  validity 
of  such  gifts ;  as  to  whether  the  testator  has  given  for  some 
charity  or  is  rather  leaving  his  trustees  to  give  or  not,  accord- 
ing to  their  own  inclination.  But  our  courts  are  not  disposed 
to  let  a  good  public  object  fail  if  they  can  help  it,  where  the 
testator's  intention  may  be  discovered  and  he  has  not  confided 
too  great  discretion  to  those  selected  to  carry  out  his  wishes.^ 

§  465.  Bequest  void  for  Uncertainty;  or  where  Principal  or 
Income  is  locked  up  too   long.  —  There   may  be  bequests   void 

'  2  Story  Eq.  Jur.  §§    11 55-1 164;  2  uses  is  drawn  from  the  common  law  and 

Kent  Com.  287,  288 ;  Burbank  v.  Whit-  local  statutes,  irrespective  of  43  Eliz. 

ney,  24  Pick.  146;  Drury  v.  Natick,  10  Denio,   J.,  in  Williams  v.   Williams,  4 

Allen,    177  ;  Wms.    Exrs.    1069,    1070,  Seld.  525. 

and   Perkins's   notes.      In   Jackson   v.         ^  See  gift  to  meritorious  widows  and 

Phillips,  14  Allen,  556,  Gray,  J.,  quotes  orphans  to  keep  them  from  becoming 

approvingly  the  language  used  by  Mr.  paupers,  in  Camp  v.  Crocker,  54  Conn. 

Binney  in  arguing  the  Girard  Will  Case,  21;  Sowers  v.   Cyrenius,   39   Ohio   St. 

41,  that   a  charitable  or  pious  gift   is  29.     But  a  gift  to  "charitable  objects," 

/"  whatever  is  given  for  the  love  of  God,  such   charitable   purposes    as   A.   shall 

or  for  the  love  of  your  neighbor,  in  the  deem   proper,  etc.,  is  of  very  doubtful 

catholic    and    universal    sense  —  given  vaUdity.     53    Conn.    242;  Prichard   v. 

from  these  motives  and  to  these  ends  Thompson,  95  N.  Y.  76.     Cf.  Goodale 

^  — free  from  the  stain  or  taint  of  every  v.  Mooney,  60  N.  H.  528.     A  will  may 

consideration  that  is  personal,  private,  use  such  expressions  as  "  benevolence," 

or  selfish."     And  see  28  Penn.  St.  35.  "  charitable  assistance  and  benefit,"  etc., 

The  New  York  doctrine  of  charitable  in    the    general    sense   of   charity.      14 

594 


CHAP.   III.] 


LEGACIES. 


§  465 


for  uncertainty."  So  may  the  bequest  fail  when  given  to  re- 
main in  bulk  for  some  remote,  unborn  generation,  in  violation 
of  the  rule  against  perpetuities.^  Nor  should  income  be  locked 
up  too  long,  to  accumulate  for  distant  posterity,  and  so  as  to 
debar  immediate  survivors  of  the  decedent  from  receiving  in- 
come as  well  as  capital.^ 


R.I.  412;  52  Conn.  412.  Some  of  our 
later  codes  check  charitable  bequests 
by  pronouncing  them  void  unless  made 
within  a  prescribed  period  —  e.^.  two 
months  —  before  the  testator's  death. 
154N.  Y.  199. 

'  See  §  464  ;  2  P.  Wms.  387 ;  Jubber 
7'.  Jubber,  9  Sim.  503 ;  Wms.  Exrs. 
1 155.  But  mistakes  of  description  may 
sometimes  be  corrected  by  construction. 
I  Bro.  C.  C.  91  ;  Tomkins  v.  Tomkins, 
3  Atk.  257;  Wms.  Exrs.  11 52-1 155, 
and  Perkins's  notes. 

^  After  some  fluctuation  in  the  deci- 
sions, the  limitation  finally  fixed  upon 
is  the  period  of  a  life  or  lives  in  being 
at  the  death  of  the  testator,  and  twenty- 
one  years  more ;  adding,  in  case  of  a 
posthumous  child,  a  few  months  longer, 
to  allow  for  the  period  of  gestation.  If 
a  further  postponement  be  attempted, 
the  limitation  is  void.  Bengough  t'. 
Edridge,  i  Sim.  173;  7  Bligh,  202 ;  i 
Jarm.  Wills,  226-229.  Of  two  possible 
constructions,  that  seems  to  be  preferred 
which  would  avoid  violating  the  rule 
against  perpetuities  and  thus  vitiating 
the  bequest.  Rand  v.  Butler,  48  Conn. 
293;  169  111.  432.  Thus,  where  trustees 
were  directed  to  pay  over,  in  "  three 
years  or  earlier  or  later,  in  their  discre- 
tion," after  a  designated  life  should  ex- 
pire. Brandenburg  v.  Thorndike,  139 
Mass.  102. 

A  devise  of  property  to  one's  widow 
for  life,  and  after  her  death  the  property 
to  become  part  of  her  residuary  estate 
is  valid  within  the  rule.  Bailey  v. 
Bailey,  97  N.  Y.  460.  Semble,  the  "  life 
or  lives  in  being"  may  be  those  of 
strangers  instead  of  beneficiaries.     lb. 


Life  or  lives  in  being,  without  the  ad- 
dition of  twenty-one  years,  is  the  limit 
of  suspension  in  some  State  codes.  61 
Wis.  469;  20  Fed.  R.  792;  102  N.  Y. 
161.  For  a  corresponding  prohibition 
oi  Jidei  commissum  under  the  Louisiana 
code,  see  36  La.  An.  754. 

A  tendency  to  perpetuity  is  no  objec- 
tion, however,  to  a  charitable  bequest ; 
for  charity,  it  is  said,  never  fails.  2 
Redf .  Wills,  546,  547 ;  Odell  v.  Odell, 
10  Allen,  1  ;  Williams  v.  Williams,  2 
Seld.  525.  But  a  gift  to  keep  family 
tombs  in  perpetual  repair  is  objection- 
able under  the  riile  of  the  text.  10  Jur. 
N.  S.  648  ;  Coit  V.  Comstock,  51  Conn. 
352 ;  Detwiller  v.  Hartman,  37  N.  J. 
Eq.  347  ;  Fite  v.  Beasley,  12  Lea,  328; 
79  Ala.  423.  And  so  as  to  funds  left 
for  a  brass  band  to  come  to  the  grave 
every  year  and  play  dirges.  37  N.  J. 
P'q.  347.  The  American  rule  against 
perpetuities  is  like  the  English,  but  stat- 
ute qualifications  are  found.  See  23 
Hun,  223. 

3  See  Thellusson  ?'.  Woodford,  4 
Yes.  227.  The  usual  rule  applies  (where 
no  statute  intervenes)  to  capital  and 
income  alike.  Mr.  Thellusson's  will 
gave  a  large  fortune  to  accumulate  in 
trust,  income  being  added  to  principal, 
during  all  the  lives  in  being  at  his  de- 
cease, and  for  twenty-one  years  more; 
in  other  words,  for  the  entire  period 
permitted  by  the  rule  against  perpetui- 
ties. Such  was  the  public  indignation 
in  England  at  this  heartless  bequest, 
that  Parliament  passed  an  act  (39  &  40 
Geo.  III.  c.  98)  which  forbade  accumula- 
tion thenceforth  under  trusts  longer 
than  the  life  of  a  grantor  or  settler,  and 


595 


§  467  EXECUTORS    AND    ADMINISTRATORS.  [PART   V. 

§  466.   Legacies  Absolute  or  Conditional,  Vested  or  Contingent. 

—  Legacies  may  be  made  conditional ;  the  condition  annexed 
being  either  precedent  or  subsequent ;  so  that,  on  the  one  hand, 
the  bequest  may  never  take  effect,  or,  on  the  other,  it  may  take 
effect  with  the  Hability  of  being  afterwards  defeated.  Legacies, 
however,  are  usually  absolute,  or  are  so  given  without  condition 
as  to  vest  immediately  and  fully.  Devises  and  legacies,  more- 
over, may  be  vested  or  contingent,  and  may  be  given  under  such 
limitations  as  to  confer  an  interest  in  possession  to  one,  and  an 
interest,  by  way  of  remainder,  to  another ;  thus  giving  rise  to 
many  abstruse  questions  not  properly  discussed  in  a  treatise  like 
this.'  But  every  interest  under  a  will  vests  at  the  decease  of 
the  testator,  unless  otherwise  provided  ;  and  even  an  interest  to 
take  effect  in  possession  after  a  precedent  one,  may  vest  simul- 
taneously with  it  in  right,  so  as  to  devolve  upon  the  executors 
or  administrators  of  any  legatee  who,  having  survived  the  tes- 
tator, may  die  afterwards  before  his  possession  has  vested  ;  never- 
theless, an  interest  which  is  clearly  contingent  must  be  so 
construed,  however  inconvenient  to  a  beneficiary  and  his  repre- 
sentatives. 

§  467.    Lapsed  Legacies ;    General  Rule.  —  There  is  an  implied 
condition,  precedent  to  all  legacies,  founded  in  the  ambulatory 


the  term  of  twenty-one  years  after  his  lion  as  to  accumulating  both  capital  and 

death,  or  during  the  minority  of  such  income  prevails.     95  N.  Y.  13,  103;  63 

as  would  otherwise  be   entitled  under  Wis.  529. 

the  will.  This  act,  still  styled  the  As  to  the  Enghsh  statute  of  mort- 
"Thellusson  act,"  loads  the  testator's  main,  which  imposes  especial  restraints 
memory  with  a  reproach  which  may  well  upon  devises  of  land  for  charitable  pur- 
outlast  the  suspension  of  his  benefac-  poses,  &c.,  see  act  9  Geo.  II.  c.  36 
tion.  The  restraints  of  this  act  apply  (1736);  1  Jarm.  Wills,  219;  Wms. 
not  only  to  cases  expressly  providing  for,  Exrs.  10^8  el  set/.  American  policy  is 
but  to  such  also  as  by  implication  result  not  uniform  in  this  respect.  See  2 
in,  such  accumulations.  See  i  Jarm.  Kent  Com.  283;  79  N.  V.  327  ;  69  Mo. 
Wills,  293.     This  act   limits  accumula-  492. 

tion  for  charities  as  well  as  for  individ-  '  See  Wms.  Exrs.  889 ;  i  Jarm.  Wills, 
uals.  Masterman  y?^,  (1895)  2  Ch.  '^4;  7991  Schoul.  Wills,  §  562.  For  a  re- 
(1895)  App.  186.  cent  example  of  condition  subsequent 
In  the  several  United  States,  either  in  a  legacy,  see  Hammond  v.  I  lam- 
there  is  corresjoonding  local  legislation  mond,  55  Md.  575.  And  see  Clayton  v. 
on  this  point,  or  else  the  general  restric-  Somers,  27  N.  J.  Eq.  230. 

596 


CHAP.   III.]  LEGACIES.  §   467 

character  of  the  will  itself,  during  the  maker's  own  life  ;  namely, 
that  the  testator  must  first  die,  leaving  the  instrument  as  his 
last  true  will,  before  it  can  operate  as  such.  The  death  of  the 
legatee  named  therein  before  the  testator,  causes,  therefore,  the 
legacy  to  lapse  ;  while,  as  the  preceding  section  shows,  the  con- 
dition precedent,  or  contingency  with  which  the  bequest  may 
have  been  coupled,  produces  a  lapse  in  various  instances  where 
the  legatee  dies  after  the  testator.  For  a  lapsed  legacy  is  one 
which  never  vests :  either  (i)  in  consequence  of  the  death  of 
the  legatee  before  the  testator  ;  or,  (2)  because,  notwithstanding 
the  legatee  survive  the  testator,  he  dies  before  his  interest  can 
be  said  to  have  vested  under  the  will.  Lapsed  legacies  are 
most  commonly  of  the  former  kind.' 

There  are  cases  where  the  death  of  the  legatee,  subsequent 
to  the  testator's  death,  will  cause  the  legacy  to  lapse,  his  inter- 
est not  having  vested  in  the  meantime.  Such  is  not  the  gen- 
eral rule ;  but,  if  the  legatee  die  after  his  testator,  and  before 
payment,  his  own  executor  or  administrator  may  demand  the 
legacy  of  the  testator's  representatives.''  Yet,  where  the  will 
expressly  and  absolutely  postpones  payment  of  the  legacy  until 
a  later  period  than  the  testator's  death,  we  are  to  inquire  what 
is  the  intent  of  such  a  provision.^ 

■  Swinb.  pt.  7,  §  23,  pi.  I  ;  Wms.  upon  his  death,  following  the  usual 
Exrs.  1204-1206;  I  P.  Wms. 83.  And  rule;  and  so,  in  general,  where  it  ap- 
see  Maitland  v.  Adair,  3  Ves.  231.  As  pears  to  have  been  intended  that  one's 
to  the  common-law  distinction  between  bounty  should  immediately  attach  upon 
lapsed  devises  and  lapsed  legacies,  see  his  death.  If,  however,  the  context  and 
Moffet  V.  Elmendorf,  152  N.  Y.  475, 485.  circumstances  forbid  such  favorable  in- 
Modern  statute  tends  to  abolish  all  such  terpretation,  and  the  testator  obviously 
distinction,  .so  that  lapsed  devises,  like  meant  to  incorporate  time,  not  with  the 
lapsed  legacies,  fall  into  the  residue  of  payment,  but  with  the  substance  of  the 
the  estate.     lb.  gift,  as  a  condition  precedent  to  vesting 

^  Swinb.  pt.  7,  §  23,  pi.  I  ;  Gartshore  the  title,  the  legacy  is  here  contingent 

2/.  Chalie,  10  Ves.  13;  Wms.  Exrs.  1224  ;  in    interest;    and,  being   contingent,    it 

Hester  v.  Hester,  2  Ired.  Eq.  330 ;  Tra-  lapses  if  from  death  of  the  legatee  or 

verf.  Schell,  20  N.  Y.  89;   next  c.  other   cause    it    cannot    have    vested. 

^  If  the  testator's  apparent  intention  Courts  of  equity  incline,  on  the  whole, 

was  to  emphasize  the  law  concerning  to  adopt  a  construction  most  favorable 

the  time  of  payment,  or  to  modify  it  for  to  vesting   the   interest,    pro\dded   the 

the  convenience  of  the  legatee  on  the  testator's  wishes  be  not  thereby  violated, 

one  hand,  or  of  his  own  executor  on  3  Woodeson,   512;   Wms.   Exrs.    1224; 

the  other,  the    title  vests  immediately  Eldridge  z^.  Eldridge,  9  Cush.  516. 

597 


§468 


EXECUTORS    AND    ADMINISTRATORS, 


[part  V. 


The  general  rule  at  this  day  is  that  all  devises  or  legacies  are 
deemed  to  have  lapsed  where  the  beneficiary  named  dies  in  the 
testator's  lifetime  ;  in  which  case  the  gift  falls  into  the  residuum 
or  becomes  intestate  estate,  as  the  case  may  be.'  But  by  a 
substitutional  gift,  if  the  will  so  directs,  the  devise  or  legacy  may 
upon  such  predecease  vest  in  some  other  beneficiary.^ 


§  468.  Cumulative  Legacies ;  Repetition  or  Substitution  of 
Legacies.  —  Where  the  same,  or  a  different  amount  of  money 
or  other  things,  as  estimated  by  quantity,  is  bequeathed  to  the 
same  person  by  the  same  will  more  than  once,  it  may  be  a  ques- 
tion whether  the  legatee  shall  by  intendment  take  both  amounts 
or  one  only  ;  for,  in  the  one  case,  the  legacies  are  cumulative, 
while,  in  the  other,  a  mere  repetition  of  the  bequest,  or  else  a 
substitution,  takes  place. ^ 

Added  legacies  or  substituted  legacies  are  presumed  to  carry 
the  incidents  of  the  original  legacy  ;  though  such  presumptions 
yield  readily  to  proof  of  the  testator's  real  intention. •> 


This  subject,  which  presents  many 
abstruse  inquiries,  all  resolvable  by  the 
nile,  that  what  appears  to  have  been 
the  testamentary  intent  should  prevail, 
is  examined  at  length  in  Wms.  Exrs. 
1224-1251.  A  testator  dies  intestate  as 
to  a  lapsed  devise  or  bequest  contained 
in  a  residuary  clause.  Gorgas's  Estate 
166  Penn.  St.  269;  Morton  v.  Wood- 
bury, 153  N.  Y.  243. 

'  Jackson  v.  Alsop,  67  Conn.  249 ; 
Wood  V.  Seaver,  1 58  Mass.  4 1 1 
(though  using  the  word  "heirs"). 

^  Glover  v.  Condell,  163  111.  566. 
As  to  a  lapse  in  gifts  to  a  class,  see 
(1893)  I  Ch.  567. 

'  Wms.  Exrs.  1 289 ;  Guy  v.  Sharp,  i 
My.  &  K.  589 ;  Hubbard  v.  Alexander, 
3Ch.Div.  738;  Wms.  Exrs.  1 290-1 294  ; 
De  Witt  V.  Yates,  10  Johns.  156;  Rice 
V.  Boston  Aid  Society,  56  N.  H.  191  . 
Suisse  V.  Ix)wther,  2  Hare,  424,  432, /^r 
Wigram,  V.  C.  The  testator's  inten- 
tion should  be  the  main  guide;  though 
to  fortify  the  construction  in  cases  of 


doubt,  various  presumptions  are  stated 
by  courts  of  equity.  Cases,  supra; 
Tweedale  v.  Tweedale,  10  Sim.  453- 
Guy  V.  SharjD,  1  My.  &  K.  589.  For 
recent  instances  of  legacies  held  to  be 
cumulative  and  not  merely  repetitive  or 
substitutional^,  see  Utley  v.  Titcomb, 
63  N.  H.  129;  Barnes  v.  Hanks,  55 
Vt.  317;  Sponsler's  Appeal,  107  Penn. 
St.  95.  Legacies,  not  of  the  same  kind, 
or  not  payable  in  the  same  event,  or  at 
the  same  time,  may  well  be  presumed 
cumulative.  Wray  v.  Field,  2  Russ. 
257.  But  where  legacies  are  of  the 
same  amount  and  character,  the  pre- 
sumption that  they  were  intended  to  be 
cumulative  is  a  .slight  one,  and  may  be 
ea.sily  shaken.  17  Yes.  34,  41  ;  Wms. 
Exrs.  1 29 1,  and  numerous  cases  cited. 
See  also  State  v.  Crossley,  69  Ind.  203  ; 
Schoul.  Wills,  §  565. 

*  Cooper  7).  Day,  3  Meriv.  154  ;  Wms. 
Exrs.  1296;  7  Sim.  237;  Duncan  v. 
Duncan,  27  Beav.  386. 


598 


CHAP.   III.]  LEGACIES.  §  470 

§  469.  Satisfaction  of  Debts  or  Portions  by  Legacies.  —  There 
is  an  old  rule,  founded  upon  a  series  of  English  equity  prece- 
dents, which,  to  quote  Judge  Redfield's  expression,  seems  still 
to  maintain  "a  kind  of  dying  existence,"  though  whimsical  and 
unsatisfactory ;  namely,  that  where  a  debtor  bequeaths  to  his 
creditor  a  legacy  equal  to  or  greater  than  the  amount  of  the 
debt,  it  shall  be  presumed,  all  other  things  being  equal,  that  he 
meant  the  legacy  should  operate  in  satisfaction  of  the  debt.' 
Upon  this  presumption,  supposing  it  available  —  and  how  un- 
likely it  is  that  one  should  intend  discharging,  by  way  of  favor, 
and  on  the  contingency  of  his  death,  that  which  subsists  as  a 
legal  obligation,  regardless  of  that  contingency  or  of  his  last 
wishes,  and  taking  precedence  of  all  legacies,  a  moment's  reflec- 
tion will  show  —  the  courts  have  engrafted  various  exceptions, 
often  laying  hold  of  little  circumstances  or  expressions,  as  if  to 
show  a  readiness  to  reverse  the  rule.^ 

The  better  rule  for  this  day  is  that  if  a  debtor  leaves  a  legacy 
to  his  creditor  this  is  not  to  be  deemed  a  satisfaction  of  the  debt, 
unless  intent  appears ;  ^  though  actual  intent  must  govern. 

§  470.  Release  of  Debts  by  Legacies.  —  Where  a  creditor 
bequeaths  a  legacy  to  his  debtor,  without  clearly  indicating  his 

'2  Redf.  Wills,  185,  186;  Bronson,  J.,  more,  the  question  is  mainly  one  of  the 

in    Eaton   v.    Benton,    2    Hill    (N.  Y.)  presumed  intention  of  the  testator. 

576;  Wms.  Exrs.  1297.     See  Horlock  An  accepted  legacy  to  A.  of  more  than 

Re,  (1895)  ^  Ch.  516.  the  testator  owed  her,  the  will  declaring 

^Wms.  Exrs.  1298,  and  cases  cited;  expressly  that  it  shall  be  in  lieu  of  all 
I  Atk.  428 ;  3  Atk.  96 ;  Byde  v.  Byde,  claims  of  A.  against  the  testator's  estate, 
1  Cox,  44  ;  Rawlins  v.  Powel,  i  P.  Wms.  of  course  satisfies  the  debt.  Rusling  v. 
299;  2  P.  Wms.  132,  343;  Nicholls  J/.  Rusling,  42  N.  J.  Eq.  594.  But  accept- 
Judson,  2  Atk.  300;  Wms.  Exrs.  1298;  ance  of  a  legacy  does  not  usually  pre- 
Crouch  V.  Davis,  23  Gratt.  62  ;  Carr  v.  elude  one  from  making  a  claim  founded 
Estabrooke,  3  Ves.  561.  Even  a  direc-  on  the  testator's  mismanagement  of  the 
tion  in  the  will  to  "pay  all  debts  and  legatee's  property.  Whittemorez'.  Ham- 
legacies"  has  been  relied  on  as  the  ilton,  51  Conn.  153.  As  to  interest  on 
foundation  of  an  exception.  3  Atk.  65;  such  a  debt,  where  the  legacy  should 
Fields'.  Mostin,  2  Dick.  543.  See  supra,  cancel  it,  see  70  Iowa,  368. 
§439,  concerning  the  effect  of  appoint-  ^  \2  Wend.  68;  Sheldon  v.  Sheldon, 
ing  one's  creditor  his  executor.  133  N.  Y.  i.     But  identity  in  amount 

As  for  satisfying  portions  by  a  legacy,  may   be   evidence   of    such   intent.    55 

a  rule  of  presumption  is  applied  by  the  N.  J.  Eq.  42. 
equity    decisions ;    though    here,    once 

599 


§   470  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

intention  in  so  doing,  the  presumption  appears  to  be  that  the 
debt  shall  not  thereby  be  released  or  extinguished  ;  and  if  the 
debt  be  further  evidenced  by  a  promissory  note  or  other  writ- 
ing, and  the  writing,  documents,  or  securities,  appear  among 
the  testator's  effects,  uncancelled,  and  as  though  fit  to  be  treated 
as  assets,  they  will  be  so  regarded."  Under  such  circumstances, 
it  is  held  that  the  legacy  of  a  creditor  to  his  debtor  may  be  re- 
tained in  payment  pro  fanto,  though  the  debt  were  barred  by 
the  statute  of  limitations.^  Where,  however,  the  evidence  goes 
to  show  that  the  creditor  meant  to  release  the  debt  and  give  a 
legacy  besides,  his  debtor  shall  have  the  full  benefit  thereof ;  ^ 
and  while  such  intention  ought,  if  possible,  to  be  gathered  from 
the  force  of  the  will,  courts  of  equity  have  sometimes  explored 
in  other  directions  to  ascertain  whether,  as  between  creditor  and 
debtor,  the  debt  was  ever  remitted.''  A  liberal  construction  is 
given  to  the  intention  of  a  testator  to  forgive  a  debt. 5 

To  bequeath  expressly  the  debt  to  one's  debtor,  operates  as 
a  sort  of  testamentary  release  to  him  ;  but,  inasmuch  as  a  testa- 
ment cannot  dispose  of  assets,  nor  give  legacies  to  the  injury  of 
creditors  against  the  estate,  the  debt  must  needs  continue  assets 
for  their  benefit,  should  a  deficiency  appear.^ 

'  Wms.  Exrs.  1303;  Wilmot  7'.  Wood-  meant ;  and  it  is  said  to  be  dangerous 

house,  4  Bro.  C.  C.  226.  to  extend  the  doctrine  of  Eden  v.  Smyth, 

^  Coates  V.  Coates,  33  Beav.  249  ;  where  the  testator's  books,  papers,  dec- 
Courtenay  ta  Wilhams,  3  Hare,  589 ;  larations,  etc.,  were,  though  reluctantly, 
Wms.  Exrs.  1304;  Brokaw  z/.  Hudson,  admitted.  See  Chester  v.  Ursvick,  23 
27  N.  J.  Eq.  135.  Local  statutes  some-  Beav.  404;  Wms.  Exrs.  1304;  2  Redf. 
times  provide  that  a  debt  due  from  a  Wills,  190,  note.  Yet  it  must  be  con- 
legatee  to  the  estate  may  be  deducted  ceded  that  a  transaction,  as  between 
from  his  legacy.  But  unless  the  intent  debtor  and  creditor,  may  lie  entirely 
of  the  will  is  clear,  a  debt  barred  by  outside  the  will,  notwithstanding  debtor 
limitations  cannot  be  thus  deducted,  or  creditor  be  himself  a  legatee;  nor  is 
Allen  V.  Edwards,  136  Mass.  138.  it  strange  for  a  testator  to  so  regard  it. 

3  Wilmot  7'.  Woodhouse,  4  Bro.  C.  C.  '  See  37  N.  J.  Eq.  377,  where  the  will 

226;    Hyde   v.    Neate,    15    Sim.    554;  spoke   of   two   mortgages   when    there 

Wms.  Exrs.  1304.  were  three.     76  Ala.  381. 

*  Eden  z^.  Smyth,  5  Ves.  341.     View-  ^  Rider   v.   Wager,  2    P.    Wms.  331. 

ing  the  subject  of  releasing  or  satisfying  As  to  the  effect  of  appointing  a  debtor 

debts  by  legacies  as  one  of  purely  tes-  to  be  one's  executor,  see  supra,   §  208. 

tamentary  interpretation,    there    seems  The  bequest  of  a  note  to  its  maker  gives 

legal  inconsistency  in  going  far  outside  him    the  absolute   title;    the  testator's 

the  will   to    ascertain  what  a  testator  estate   not    being   deficient   for   paying 

600 


CHAP.    III.]  LEGACIES.  §  472 

s5  471.  Ademption  of  Legacies.  —  A  few  words  should  be 
added  on  the  subject  of  ademption.  A  bequest  fails,  doubtless, 
not  only  by  a  lapse,  but  when  revoked."  Aside  from  the  revo- 
cation of  a  testamentary  instrument  as  such,  any  particular 
legacy  or  legacies  may  be  revoked,  or  to  use  the  more  appro- 
priate word,  adeemed.  By  the  word  "  ademption,"  employing  its 
Latin  figure,  is  signified  the  extinction  or  taking  away  of  a  legacy 
in  consequence  of  some  act  of  the  testator  which,  though  not 
directly  a  revocation  of  the  bequest,  should  be  considered  in  law 
as  tantamount  thereto.^  The  ademption  of  a  legacy  is  distin- 
guishable, of  course,  from  its  lapse.^ 

§  472.  Trustees  under  a  "Will ;  Equity  and  Probate  Jurisdiction  ; 
Duties  of  a  Trustee;  Equity;  Probate  Procedure. —  In  Order  to 
carry  out  special  provisions  under  a  will,  which  look  to  the  pres- 
ervation of  a  principal  fund  for  special  schemes,  such  as  charity,  or 
so  as  to  pay  income  only  to  persons  designated,  until  the  happen- 
ing of  some  event,  or  so  that  the  fund  may  accumulate,  and  gen- 
erally where  the  intent  is  to  postpone  the  full  beneficial  vesting  of 
the  legacy  in  the  ultimate  legatee,  trustees  are  usually  designated 
under  a  will  to  hold  and  manage  the  fund,  apart  from  executors. 
These  trustees  act  subject  to  the  approval,  direction,  and  some- 
times selection  of  courts  of  equity ;  and,  properly  speaking,  the 
administration  of  these  testamentary  trusts  is  a  branch,  and  quite 
an  important  one,  of  equity  jurisdiction.  In  many  parts  of  the 
United  States,  however,  the  probate  courts  in  the  several  counties 
have  general  equit}'  powers,  conferred  by  statute,  and  exercised 
concurrently  with  the  supreme  tribunal  of  the  State. *• 

The  appointment,  qualification,  and  immediate  supervision  of 
testamentary  trustees,  devolves,  however,  under  American  codes, 
upon  the  local  probate  courts,  in  the  first  instance,  as  in  case  of 
executors.      Not  only  are  such   courts  empowered  to  appoint 

what  he  owed.     Herrick  v.  Wright,  63  theless,  the  prevailing  disposition  is  to 

N.  H.  274.  bring  important  questions  affecting  the 

'  See  supra,  §  82.  administration  of  testamentary  trusts  to 

^  Jarm.     Wills,     147 ;    Wms.     Exrs.  the  supreme  court  of  equity  and  pro- 

132 1.  bate,  in  order  that  the  jurisdiction  may 

^  Supra,  §  467.  be  clear  and  the  decree  conclusive. 

*  Mass.  Gen.  Stats,  c.  100,  §  22.  Never- 

601 


§  473  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

trustees  in  various  instances  of  trust  not  testamentary,  where 
there  is  a  vacancy  under  the  instrument,  and  no  adequate  pro- 
vision made  for  supplying  it,  but  every  trustee  appointed  by  will 
should  petition  for  a  confirmation  of  his  appointment,  file  a  suffi- 
cient bond  with  the  probate  judge  (with  or  without  security,  as 
the  case  may  be),  and  procure  letters  under  the  probate  seal, 
before  entering  upon  active  official  duties.'  The  duties  of  testa- 
mentary trustee  are  distinct  from  those  of  executor,  and  require 
separate  credentials,  even  though,  as  often  happens,  the  testator 
has  designated  the  same  person  to  serve  in  both  capacities. 
W'here  a  \'acancy  from  some  cause  occurs  in  the  office,  as  where 
the  trustee  named  declines,  resigns,  dies,  or  is  removed  before 
the  objects  thereof  are  accomplished,  the  probate  court,  upon 
the  usual  formalities,  makes  an  appointment  for  one  to  act  alone 
or  jointly  with  others,  as  the  case  may  be.  Co-trusteeship  sur- 
vives like  co-executorship.  Like  an  executor,  the  testamentary 
trustee  is  required  to  return  an  inventory  and  render  his  account 
regularly  to  the  probate  court  ;  and,  for  misconduct  or  culpable 
negligence,  he  is  liable  to  removal,  his  bond  to  the  judge  being 
put  in  suit  for  the  benefit  of  those  injured  by  his  breach  of  trust. 
Subject  to  the  usual  variation  of  State  enactments,  the  general 
rule,  in  the  United  States,  is  to  place  testamentary  trustees 
under  a  probate  supcrx'ision  similar,  mutatis  mutmidis,  to  that 
of  executors,  and  from  a  like  sedulous  regard  for  the  welfare  of 
the  beneficiaries.-  From  the  probate  decree  in  such  trusts,  the 
usual  appeal  lies  to  the  supreme  tribunal  of  the  State.^ 

§  473-  Construction  of  Wills  and  Legacies  ;  Bill  of  Interpleader 
to  remove  Doubts,  etc.  —  The  construction  of  a  will,  and  the  true 
interpretation  of  an  executor's  or  trustee's  duties  in  conformity 
thereto,  raise  other  issues  which  pertain  more  strictly  to  an 
equity  jurisdiction,  where  the  course  to  be  pursued  is  left  un- 
certain. The  convenient  method  is  to  bring  a  bill  of  equity  in 
the  nature  of  a  bill  of  interpleader,  to  procure  instructions  how 
to  act  ;  thus   saving  to  the  fiduciary,  executor  or  trustee,  the 

'Mass.  Gen.  Stats,  c.  loo.  'Smith   riob.  Law,  238.     See  Perry 

^  Smith   Prob.   Law,  93,  97,  101,  236;     Trusts,  §  2S2  el  seq.  ;  supra,  §§  146,  247. 
Redf.  Surr.  Pract.  424. 

602 


CHAP.    III.]  LEGACIES.  §  473 

hazards  of  later  litigation,  and  avoiding  on  his  own  part  a 
perilous  risk.  Whenever  there  is  reasonable  doubt  in  regard  to 
the  proper  construction  of  an  instrument  creating  a  testamentary 
trust,  the  rule  is,  that  chancery  may  be  resorted  to  for  instruc- 
tions.' 

As  between  the  executors  and  trustees  under  a  will,  it  would 
seem  a  rational  distinction,  that,  when  the  doubtful  interpretation 
relates  simply  to  administering  a  fund  or  funds  turned  over  to 
the  trustees  for  purposes  prescribes  by  the  testator,  the  trustees 
are  the  proper  persons  to  procure  instructions  ;  but,  that  where 
such  doubt  relates  substantially  to  the  administration  of  the  es- 
tate, as  in  determining  how  the  executor  shall  perform  his  own 
duties,  so  as  to  discharge  himself  of  legacies  and  the  residue  for 
whose  satisfaction  he  is  officially  responsible,  he  rather  should  be 
the  petitioner.  While,  however,  the  executors  or  the  trustees, 
as  the  case  may  be,  take  more  commonly  the  initiative,  and  bring 
a  bill  setting  forth  the  facts,  and  calling  upon  the  claimants  to 
settle  their  rights  before  the  court,  the  procedure  is  not  left 
wholly  to  their  option  ;  but  any  party,  claiming  an  interest  af- 
fecting the  construction  of  the  will,  legatee  or  cestui  que  trust, 
may  institute  the  suit  against  the  executor  or  trustee  and  all 
other  parties  interested  in  the  question.^ 

Where  directions  are  thus  sought  in  regard  to  the  interpreta- 
tion of  a  will  or  trust,  and  the  duty  of  those  appointed  to  carry 
its  provisions  into  effect,  the  whole  expense  of  the  litigation  is 
thrown  upon  the  estate,  unless  the  petitioner  discloses  a  frivolous 
case. 3     This  may  prove  an  especial  hardship  to  residuary  leg- 

'  Sitpra,  §  265  ;    Schoul.  Wills,  §  492.  by  him  from  the  representatives  of  the 

^  Martineau  v.  Rogers,  8  De  G.  M.  &  deceased  executor  are  to  be  accounted 

G.   328 ;  Maxwell  v.   Maxwell,   L.  R.  4  for  as  belonging  to  the  estate  or  the 

H.  L.  521  ;  Bowers  v.  Smith,   10  Paige,  trust.     Putnam  v.  Collamore,  109  Mass. 

193;  Treadwell  v.  Cordis,  5  Gray,  341  ;  509.     See  Clay  v.  Gurley,  62  Ala.  14. 
2  Story  Eq.  Jur.  824,  and  cases  cited.  ^  Studholme  v.  Hodgson,  3  P.  Wms. 

Where  one  is  both  administrator  with  303;  Attorney-General  <7.  Jesus  College, 

the  will  annexed  and  trustee  under  the  7  Jur.  N.  S.   592 ;  Sawyer  v,  Baldwin, 

will,  he  may  maintain  a  bill  in  equity  20  Pick.  378;  Rogers  v.  Ross,  4  Johns, 

against  the  cestui  que  trust,  and  a  cred-  Ch.  608;  Howlandz/.  Green,  108  Mass. 

itor  who  has  brought  suit  against  him,  283.     English    practice  is   to   pay   the 

to  determine  whether  moneys   received  fund  into   court,  and  have  the  parties 

603 


§   475  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

atees  ;  and  no  precaution  is  so  good  as  that  of  making  one's 
own  testamentary  scheme  clear,  simple,  and  just." 

§  474.  Construction  of  Wills,  Legacies,  etc.  —  To  enter  into  a 
discussion  of  the  general  rules  affecting  the  construction  of  wills 
and  the  legacies  given  by  a  testator  is  foreign  to  the  purpose  of 
this  work.  The  cases  under  this  head,  which  are  very  numerous, 
may  be  found  in  general  treatises  on  wills,  English  and  American, 
and  this  author  has  discoursed  upon  the  subject  at  length  in  a 
companion  volume.^  The  leading  principle,  which  the  courts  of 
both  countries  respect,  is  that  the  testator's  intent  shall  be  fol- 
lowed, if  possible  ;  this  intent,  to  use  a  common  figure  of  judicial 
speech,  being  the  pole  star  by  which  the  court  should  be  guided.' 
Such  a  rule,  to  be  sure,  leads  into  various  courses,  since  every 
will  must  be  steered  by  its  own  luminary.  Yet,  uniform  justice 
is  better  than  strict  consistency  ;  and  it  is  observable,  that,  while 
in  contracts  the  common  mind  of  two  or  more  must  be  sought 
out  from  their  mutual  expression,  a  will  expresses  but  one  mind 
essentially,  and  one  disposition  ;  and  again,  as  inter  vivos,  parties 
may  opjDose  their  own  proofs,  whereas  the  testator  necessarily 
confides  his  meaning  to  an  instrument  which  courts  of  equity  are 
sacredly  enjoined  to  interpret  justly  as  between  him  and  those 
he  leaves  behind,  should  controversy  arise,  death  having  closed 
his  own  lips.'' 

§  475-  JDoubtful  Points  settled  by  the  Agreement  of  all  Parties 
in  Interest. —  It  is  a  general  principle,  that  all  the  ])arties  inter- 
ested in  an  estate  or  fund,  if  competent  and  sui  juris,  ma)',  by 
their  own  mutual  agreement,  waive  stipulations  under  the  will 
which  affect  its  distribution,  or  agree  upon  some  particular  con- 
appear  and  obtain  the  judgment  of  tlie  To  this  proposition  various  qualifica- 
courtsasto  their  rights.  Hooper's  Will,  tions  are  found,  which  writers  on  the 
Ke,  7  Jur.  N.  S.  595.  law  of  wills  summarize  from  the  deci- 

'  Chancery  seeks,  if  it  be  practicable,     sions. 
to  adjust  the  costs  ratably  to  the  various         ^  Since  the    above  was  written,  the 
interests  affected  by  the  construction,     present   author  has  prepared  his  own 
See  L.  R.  7  P2q.  414.  exposition  of  the   rules,  to  which   the 

^  See  Schoul.  Wills,  Part  VI.  reader  is    referred  for   further  details. 

'See  Quincy  7/.  Rogers,  9  Cush.  294,     Schoul.  Wills,  Part  VI. 
per  Shaw,  C.  J.  A  will  speaks  for  sonic  purposes,  as 

604 


CHAP.    III.]  LEGACIES.  §   475 

struction  of  doubtful  provisions,  so  that  the  will  shall  be  carried 
out  accordingly.  An  executor,  by  procuring  some  such  mutual 
agreement,  may  often  relieve  himself  of  an  embarrassing  re- 
sponsibility without  invoking  the  assistance  of  the  court  at  all. 
Legislation  sometimes  extends  expressly  the  right  of  thus  adjust- 
ing conflicting  interests,  by  empowering  the  executor  or  other 
fiduciary  to  bind  the  future  contingent  interests  of  parties  not 
capable  of  being  represented,  wherever  the  court  of  equity  shall 
declare  the  operation  of  such  proceeding  to  be  just  and  reason- 
able in  its  effect  upon  such  interests.' 

good  sense  allows,  from  the  period  of     until    the   latter    period.     Jarm.   Wills, 
execution,  and  for  others  from  the  death     762  ;  Schoul.  Wills,  §  486. 
of  the  testator ;  but  it   never  operates         '  Brophy  v.  Bellamy,  L.  K.  8  Ch.  79<S. 

605 


§  47^  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


-CHAPTER  IV. 

PAYMENT  AND  SATISFACTION  OF  LEGACIES. 

§  476.  Payment,  etc.,  of  Legacies  by  the  Executor ;  All  Valid 
Legal  Claims  take  Precedence.  —  With  the  prehminary  view  of 
legacies,  their  nature  and  incidents,  afforded  in  the  preceding 
chapter,  we  come  to  the  topic  which  more  especially  pertains  to 
the  present  treatise  ;  namely,  the  payment  and  satisfaction  of 
legacies  by  the  executor.  And  here,  it  should  first  be  obser\'ed, 
that  before  an  executor  can  safely  pay  ov^er  legacies  of  any  de- 
scription, he  must  settle  or  provide  for  the  adjustment  of  all 
valid  legal  claims  against  the  estate,  since  these  take  regular 
precedence,  regardless  of  a  testator's  wishes.'  Even  voluntary 
bonds  and  other  debts  by  specialty,  whose  seal  imports  a  con- 
sideration, must  be  paid  in  preference  to  legacies,  and  not  debts 
founded  in  actual  consideration  alone.-  His  disregard  of  such 
legal  preference  renders  him  liable  personally.^ 

Much  discussion  has  arisen  upon  the  liability  of  a  representa- 
tive for  contingent  claims,  as  upon  some  outstanding  covenant 
in  a  deed,  or  condition  in  a  bond,  executed  by  his  testator,  where 
the  condition  or  covenant  is  not  yet  broken  ;  and  the  result  ap- 
pears to  be,  that  the  executor  is  not  obliged  to  part  with  the 
assets  to  particular  or  residuary  legatees,  unless  fully  indemni- 
fied against  such  contingent  claims.-*  For,  while  an  executor  is 
bound  to  pay  over  to  the  legatee,  as  it  is  said,  upon  receiving 
such  indemnity,^  the  decisions  establish  that,  without  such  in- 
demnity or  impounding  part  of  the  assets,  he  would  be  liable  to 

'  Lomas  v.  Wright,  2  My.  &  K.  769 ;  tions  of  the  will.  Handley  v.  Heflin, 
Spode  V.  Smith,  3    Russ.  511;  Wms.     84  Ala.  600. 

Exrs.  134c.  ■*  Cro.  Eliz.  466;  Moore,  413;  Aleyn, 

^  Wms.  Exrs.  1015,  1341  ;  Gordon  v.  38;  Hawkins  jy.  Day,  Ambl.  160;  Coch- 
Small,  53  Md.  550;  Krell  v.  Codman,  rane  v.  Robinson,  11  Sim.  378;  Wms. 
154  Mass.  454.  Exrs.  1341-1344. 

^  Even  though  he  follows  the  direc-         ^  Higgins  v.   Higgins,  4    Hagg.   244, 

per  Sir  J.  Nicholl. 
606 


CHAP.   IV.]     PAYMENT  AND  SATISFACTION  OF  LEGACIES.  §  477 

answer  the  damages  de  botiis  propriis,  should  the  covenant  or 
condition  be  afterwards  broken  so  as  to  become  absolute. '  Chan- 
cery will  protect  an  executor  who  confides  in  its  guidance.^  It 
formerly  required  the  legatee,  in  all  cases,  to  give  the  executor 
security  to  refund  if  debts  should  afterwards  appear ;  ^  but  this 
requirement  fell  into  disuse  ;  and  the  modern  chancery  practice 
is  to  permit  creditors  to  follow  assets  into  the  hands  of  legatees.'* 
A  kindred  inquiry  relates  to  the  payment  of  legacies  before 
claims,  of  which  an  executor  had  as  yet  received  no  notice,  were 
settled.  Whether  the  executor  would  remain  liable  upon  debts 
not  made  known  to  him  during  the  first  year  of  his  office,  after 
he  had  paid  over  all  assets  to  the  legatees,  was  formerly  much 
discussed  in  the  English  cases  ;  but  the  rule  seems  at  length  to 
have  been  well  established,  that  payment  of  the  legacies  is  no 
defence  against  the  non-payment  of  debts,  provided  the  assets 
were  originally  sufficient  for  legal  demands  against  the  estate ;  ^ 
unless,  perhaps,  the  failure  of  the  creditor  or  claimant  to  give 
notice  of  his  demand,  involved,  by  lapse  of  time,  laches  and  the 
presumption  of  a  waiver  on  his  part.^ 

§  477-  Executor's  Bond  of  Indemnity  from  Legatees.  —  A  leg- 
acy may  be  payable  before  the  statute  period  of  limitation  for 
claims  has  elapsed.  A  payment  before  probate  of  the  will  would 
be  validated,  so  far  as  all  claim  by  the  legatee  is  concerned,  by 
the  probate  and  appointment. 7  For  the  executor's  protection 
in  this  or  other  cases  of  official  liability,  a  refunding  bond  from 

'  Cochrane  v.  Robinson,  ii  Sim.  378 ;  to  the  estate  may  be  set  off.     34  Hun, 

Wms.   Exrs.   1344;  Simmonds  v.   Bol-  104. 
land,  3  Meriv.  547.  Modern  American  legislation,  as  else- 

^  Dean  v.  Allen,  20  Beav.  i  ;  England  where  noticed,  removes  most  practical 

7'.  Tredegar,  L.  R.  i  Eq.  544.  difficulties,  by  setting  a  reasonable  bar- 

•' I    Ch.   Cas.   257;  3   My.  &  Cr.  41;  rier  to  the  presentment  of  claims  against 

Wms.  Exrs.  1348.  an  estate,  and  providing  for  impound- 

••  I    Atk.  491;  Wms.    Exrs.    1348;  3  ing  assets,  under  the  probate  direction. 

My.  &  Cr.  42.  to  meet  inchoate  or  contingent  claims. 

'  Wms.    Exrs.    1 349-1353;    Chelsea  Supra,  %%  i,\%-i^20.     And  see  the  Eng- 

Water  Works  v.  Cowper,  i    Esp.  275  ;  lish  statute  22  &  23  Vict.  c.  35,  §  39,  to 

Hill  V.  Gomme,  i   Beav.  540;  Norman  much  the  same  purport.     Wms.  Exrs. 

V.  Baldry,  6  Sim.  621  ;  Smith  v.  Day,  2  1355 ;  L.  R.  3  Eq.  368. 
M.  &W.  684.  ='Pinkham    v.    Grant,    72    Me.    158; 

*  lb.     A  debt  owing  by  the  legatee  §  238. 

607 


§  47^  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

the  payee  is  proper.  And  it  is  quite  common  for  American 
codes  to  provide,  with  reference  to  probate  practice,  that  such 
bond  shall  be  given  by  a  legatee.' 

§  478.  Legacies  are  usually  Payable  within  a  Year  from  Testa- 
tor's Death.  —  The  rule  of  chancery,  borrowed  from  the  civil  law, 
makes  legacies  payable,  unless  the  will  fixes  a  later  date,  at  the 
expiration  of  one  year  from  the  testator's  death  ;  the  presump- 
tion being,  that  such  delay  allows  the  executor  reasonable  time 
for  informing  himself  whether  the  estate  is  ample  to  pay  both 
debts  and  legacies.-  Within  the  first  year,  therefore,  an  exec- 
utor cannot  be  compelled  to  pay  over  legacies,  notwithstanding 
the  will  itself  directs  their  earlier  discharge,^  unless,  as  some 
American  statutes  provide,  one's  directions  to  that  effect  must 
be  followed.-*  But,  as  this  rule  is  set  for  the  convenience  of  an 
estate,  executors  may  of  choice,  and  in  fact  often  do,  pay  leg- 
acies much  earlier  where  the  estate  is  undoubtedly  ample  or  a 
refunding  bond  is  given. 5  If  the  payment  of  a  legacy  is  post- 
poned by  an  intervening  estate,  by  pending  htigation,  or  for  any 
other  cause,  more  than  a  year  after  the  testator's  death,  it  be- 
comes payable  immediately  when  the  right  accrues,  and  the  ex- 
ecutor cannot  claim  further  delay.'' 

Where  the  legacy  is  liable  to  be  devested  by  a  condition  subse- 
quent or  limitation  over  upon  some  contingency,  the  legatee  shall 
nevertheless  receive  his  legacy  at  the  end  of  a  year  from  the 
testator's  death  ;  and,  whether  security  shall  be  required  of  such 

'See  Mass.   Gen.   Stats,  c.  97,  §  21.  ^  Benson    7'.    Maude,    6    Madd.    15; 

On  a  sufficient  bond  being  given  by  a  White    v.    Donnell,    3     Md.    Ch.    526. 

residuary  legatee  for  the  benefit  of  other  There    is    no    estate  applicable  to  the 

legatees  entitled  to  security,  one  may  payment  of  legacies  until  the  testator's 

pay  over  without  regard  to  whether  the  debts  are  paid.    Coddingtont'.  Bisphani. 

interest  of  one  of  such  legatees  is  an  36  N.  J.  Eq.  224 ;  Foltz  t.'.  Hart,  84  Ind. 

estate  or  a  power.     Chandler  v.  Batch-  56  ;  §  476. 

elder,  61    N.  H.  370.     And  see  where  ■*  Wms.  Exrs.    1387,    and     Perkins's 

security  could  not   be  required,  Martin  note. 

V.  Lapham,  38  Ohio  St.  538.  '  i    Sch.  &    Lef.   12;  Garthshore   v. 

^  Wood    V.    Penoyre,    13    Ves.    t^t^t^;  Chahe,  10  Ves.  13. 

Miller  v.  Congdon,  14  Gray,  1 14  ;  King's  *  Laundy  v.  WilHams,  2  P.  Wms.  478  ; 

Estate,  II  Phila.  (Pa.)  26;  Wms.  Exrs.  Miller  v.  IMiilip,  5  Paige,  573;   Lord  v. 

J 387  ;   State  v.  Crossley,  69  Ind.  203.  I^ord,  L.  K.  2  Ch.  782. 

608 


CHAP.    I  V.J     PAYMENT   AND   SATISFACTION  OF   LEGACIES.  §   479 

legatee  to  refund  in  case  his  title  be  devested,  depends  upon 
circumstances ;  though  equity  dispenses  with  such  security,  un- 
less prudence  evidently  requires  it  to  be  taken.' 

A  legacy,  given  under  a  will  in  the  form  of  an  annuity,  or  as 
regular  income  for  life,  follows  the  general  rule  as  to  the  time 
when  the  executor  must  begin  paying  it  ;  that  is  to  say,  the  first 
jiayment  need  not  be  made  by  him  until  a  year  has  elapsed  from 
the  testator's  death  ;  but  the  date  from  which  the  annuity  or 
income  shall  actually  commence,  and  the  frequency  of  the  period- 
ical payments,  must  be  gathered  from  the  expressions  of  the 
will  and  the  testator's  obvious  intent.^ 

§  479.  When  the  Legatee's  Right  vests ;  Rule  as  to  Annuitants, 
Beneficiaries  for  Life,  etc.  —  Notwithstanding  a  year's  possible 
delay  in  paying  over  the  legacy,  a  legatee  is  entitled  to  payment, 
unless  the  will  speaks  differently,  as  of  the  date  when  the  testa- 
tor died. 3  It  is  the  executor's  duty  to  promptly  notify  legatees 
of  their  legacies,  and  if  from  any  ambiguity  it  is  uncertain  who 
are  legatees,  to  institute  a  bill  for  ascertaining.'' 

Doubts  may  arise,  however,  in  case  of  a  legacy  by  way  of  an- 

'  Fawkes  v.  Gray,  18  Ves.  131  ;  Tag-  jurisdiction  exists  only  where  the  right 

gard   V.   Piper,   118   Mass.  315;  Wms.  to  the  legacy  is  undisputed ;  and  if  the 

Exrs.  1388,  and  Perkins's  note.     Where  rights  of  others  to  the  legacy  are  in  con- 

a  legacy  was  given  to  the  father  on  con-  troversy,  these  rights  can  only  be  deter- 

dition  that  he  did  not  interfere  with  the  mined  upon  a  final  accounting.     Riggs 

education  of  his  daughter,  security  was  v.  Cragg,  89  N.  Y.  479;  92  N.  Y.  251. 

required  by  the  court,  the  costs  being  As  to  lien  of  a  legacy  upon  the  land  on 

deducted  from  the  legacy.     Colston  v.  which    it    is    charged,    see    Lombaert's 

Morris,  6  Madd.  89.  Appeal,  99  Penn.  St.  580. 

Executors  are  permitted  to  lend  to  a  Where  the  executor  is  directed  by  the 

devisee   or  legatee,  in  a   proper   case,  will  to  invest   a  legacy  and  pay  the  in- 

upon   the  security   of  his   interest.     2  come  to  another  for  his  life,  it  is  a  breach 

Dem.  435.     An  advance  to  a  legatee  in  of  his  official  bond  if  he  does  not  so 

necessitous  circumstances  is  sometimes  invest,  but  uses  the  legacy  in  his  busi- 

ordered.     i  Dem.  553  ;  65  Cal.  378.  ness.     Scituate  Court  z/.  Angell,  14  R.  I. 

^  Wms.    Exrs.    1390;  Irvin    v.  Iron-  495.     An  executor  is  charged  with  the 

monger,  2  Russ.  &  My.  531  ;  Storer  v.  duty  of  setting  apart  and  investing  a 

Prestage,  3  Madd.  167.     FortheMassa-  fund  for  annuity  purposes   where  the 

chusetts  rule,  see    Wiggin  v.   Swett,  6  will  fails  to  designate  such  fund  or  to 

!  Met.  194.     Statutes  sometimes  provide  specify  who  shall  inve.st  it.     163  111.  502. 

for  compelling  an  executor  after  a  sum-  •*  10  Ves.  i,  13;  supra,  §  467. 

mary  manner  in  probate  court  to  pay  ■•  Tilton  v.  American  Bible   Society, 

the  legacy.     2  Dem.  134,  230.     But  this  60  N.  H.  377.     Cf.  §  487,  11. 

39  609 


§  480  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

nuity  ;  for  the  testator  might  have  intended  it  to  commence  from 
the  end  of  the  first  year,  instead  of  what  is  more  rational,  from 
the  date  of  his  own  death.'  There  has  been  great  fluctuation 
of  opinion  in  the  EngUsh  equity  courts,  moreover,  concerning 
the  effect  of  a  bequest  of  use,  income,  or  interest  in  property,  to 
a  person  for  life,  and  then  the  ])rincipal  over  to  others  ;  but  it  is 
finally  well  established,  that  the  beneficiary  for  life  shall  be  en- 
titled to  the  income  in  one  shape  or  another  from  the  death  of 
the  testator  ;  and  this,  notwithstanding  the  life  income  is  to  be 
derived  from  a  residuary  fund  which  might  not  be  ascertainable 
until  two  years  or  more  had  elapsed  from  the  executor's  appoint- 
ment, and,  moreover,  might  have  to  be  transferred  by  the  execu- 
tor himself  to  trustees  designated  in  the  will.-  American  courts 
approve  of  this  conclusion  ;  ^  and  there  are  local  American  stat- 
utes which  expressly  favor  such  construction  as  to  all  annuitants 
and  income  beneficiaries,  either  for  life  or  until  the  happening 
of  some  event.-* 

§  480.   Interest   and   Produce  of   Specific   Legacies,  etc.  —  Out 
of  regard  for  the  time  when  the  legacy  legally  vests,  it  is  deter- 

'  See  Gibson  v.  Bott,  7   Ves.  96,  97  ;  of  the  will  in  interest-bearing  securities, 

Wms.    Exrs.    1390;  Kent  v.    Dunham,  the  "  annual  interest,  income  and  divi- 

106  Mass.  586.  dends  thereof"  to  be  paid  to  the  life 

-  Wms.  Exrs.   1390,    1391,  and  cases  tenant,  and  on  his  death  the  "principal 

cited;  Brown  v.  Gellatly,  L.  R.  2  Ch.  or  capital  sum"  to  be  divided  among  the 

751;  Angerstein  v.   Martin,  i   Turn.  &  remaindermen  ;  and  where  on  the  death 

R.  232;  Taylor  7'.  Clark,  i  Hare,  161.  of  the  life  tenant  who  received  the  fixed 

^  Sargent  v.  Sargent,  103  Mass.  297;  interest  the.se  securities  sold  for  more 

Evans  v.   Inglehart,  6  Gill  &  J.    171;  than  the  original  investment,  it  was  held 

Lovering  v.   Minot,  9  Gush.   151;  Wil-  that  this  surplus  belonged  to  the  remain- 

liamson  v.   Williamson,  6  Paige,  298 ;  dermen.     Gerry,  Re,  103  N.  Y.  445.    A 

Hilyard's    Estate,   5    Watts   &  S.    30;  dividend  being  declared  but  not  payable 

Cooke  V.  Meeker,  42  Barb.  533.     But  on  stock  before  the  life  beneficiary  died 

see  Welsh  v.  Brown,  43  N.  J.  L.  37.  is  principal  and  not   income ;  so  are  in- 

^  Mass.   Gen.  Stats,  c.  97,  §§  23,  24.  terest  in  a  sinking  fund,  and  options; 

A  charge  of  an  annuity  on  devised  but  a  dividend  declared  after  the  death 

real  estate  will  be  enforced  in  equity  by  of  the  life  beneficiary  from  earnings  ac- 

a  sale.     Merritt    v.   Bucknam,  78    Me.  cumulated  previously  is  income.    Ker- 

504.     An  annuity  given  by  a  will,  and  nochan, /'d',  104  N.  Y.  618.     See  further 

springing  solely  therefrom,  is  a  legacy.  §  324.     A  life  beneficiary  ought  to  keep 

Heatherington  v.  Lewenburg,  61  Miss,  down  charges  on  the  several  parts  of  his 

372.  fund  out  of  the  income  of  the  whole. 

Where  a  fund  is  invested  by  direction  (1896)  2  Ch.  511. 

610 


CHAP.   IV.]     PAYMKNT  AND  SATISFACTION   OF""   LEGACIES.  §   481 

mined  that  a  specific  legacy  shall  go  to  the  legatee,  with  what- 
ever interest,  income,  or  produce  may  have  accrued  thereon 
since  the  testator's  death  besides.  Thus,  a  specific  legacy  of 
domestic  animals  carries  subsequent  offspring  of  the  females 
and  all  profitable  usufruct ;  a  specific  legacy  of  stock,  the  divi- 
dends since  accruing;  and  a  specific  legacy  of  notes,  bonds, 
or  other  incorporeal  personalty,  the  interest  and  coupons,  if 
any,  appropriate  thereto  from  a  similar  date ;  in  short,  whatever 
the  specific  thing  or  fund  has  legitimately  earned  from  the  time 
the  legatee's  right  became  vested.'  Thus,  too,  would  it  be,  with 
specific  funds  appointed  to  specific  purposes,  under  a  will's  ap- 
parent intent.^  Prudence  dictates,  therefore,  that  the  executor 
should  discharge  himself  of  specific  legacies  as  soon  as  he  is  sat- 
isfied that  he  may  safely  do  so,  considering  the  debts  ;  for,  while 
he  retains  the  specific  thing  or  fund  with  its  accretions,  he  must 
account  as  for  the  management  of  something  distinct  from  the 
testator's  general  estate. 

In  exceptional  cases  the  specific  bequest  of  an  incorporeal 
chose  is  found,  on  due  construction  of  the  will,  to  carry  even  in- 
terest accruing  in  the  lifetime  of  the  testator,  that  is,  from  the 
time  the  will  was  executed.^ 

§  481.  Interest  on  General  Legacies.  —  But,  as  to  general  leg- 
acies, the  rule  is  somewhat  different.  Prudence  in  the  general 
settlement  of  the  estate  is  here  requisite ;  but  the  year's  delay 
allowed  the  executor  operates  to  postpone  interest  on  the  sev- 
eral demands  of  legatees.  Interest  is  recoverable,  in  general, 
from  the  time  such  a  legacy  becomes  payable,  and  not  sooner ; 
which  means,  usually,  after  the  expiration  of  the  year  from  the 
testator's  death. ■♦     Though  the  testator  directed  payment  of  the 

'  Wms.  Exrs.  1424;  Sleech  v.  Thor-  *•  Wood    v.    Penoyre,    13    Ves.    326; 

ington,  2  Ves.  Sen.   560;  Barrington  v.  Grain  z'.  Barnes,  i  Md.  Dec.  151  ;  Miller 

Tristram,  6  Ves.  345;  Evans  v.  Ingle-  v.    Congdon,    14     Gray,     114;     King's 

hart,  6  Gill  &J.  171  ;  Bristoww.  Bristow,  Estate,    11     Phila.   (Pa.)    26;    State   v. 

Kay,  600.  Crossley,  69  Ind.  203  ;  Wms.  Exrs.  1424; 

^  Loring  v.  Horticultural  Society,  171  41  N.  J.  Eq.  39;  Springer's  Appeal,  in 

Mass.  401.  Penn.  St.  228  ;  22  S.  C.  92.     Real  estate 

^  Wms.    Exrs.     1438;     Harcourt     v.  specially  charged  is  not  charged -n-ith  a 

Morgan,  2  Keen,  574.  general  pecuniary  legacy,  where  there  is 

611 


§   4^1  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

legacy  "  as  soon  as  possible,"  or  "  with  interest,"  this  does  not 
change  the  rule  ; '  nor  are  phrases  readily  construed  as  justify- 
ing later  payments  without  allowance  of  interest.^  And  even 
though  the  fund  out  of  which  payment  of  a  pecuniary  legacy  is  di- 
rected should  bear  interest  meantime,  residuary  legatees  are  pre- 
sumed entitled  to  the  benefit.^  Hut,  if  the  will  clearly  directs  the 
l)aymcnt  of  interest  from  an  earlier  date,  the  bequest  is  enlarged 
accordingly.'  And,  where  the  legacy  is  decreed  to  be  in  satis- 
faction of  a  debt,  the  ec|uity  practice  is  to  allow  interest  from 
the  death  of  the  testator. s  Where,  moreover,  the  executor  vol- 
untarily pays  the  legacy  over  within  the  year,  or  invests  it  spe- 
cifically for  the  legatee's  benefit,  or  pays  it  into  court  and  the  court 
orders  the  money  specially  invested,  the  interest,  profits,  and 
income  thereafter  accruing  will  belong  to  such  legatee.^ 

After  the  expiration  of  the  year,  interest  is  generally  allowed 
to  pecuniary  legatees  from  whom  payment  is  withheld ;  and 
especially  docs  this  hold  true  where  it  appears  that  the  executor 
has  all  the  time  had  the  means  in  his  hands  wherewith  to  pay 
the  legacy. 7  And  interest  will  run  in  the  legatee's  favor  thence- 
forth, even  though  no  demand  has  been  made  upon  the  executor 
for  the  legacy.^  There  are  cases  which  seem  to  lay  stress  upon 
the  executor's  opportunity  to  pay  over  and  his  delinquency  in 
failing  to  do  so  at  the  proper  time  ; '  as  where  the  validity  of  the 
will  was  in  litigation,  or  the  grant  of  letters  testamentary  was 
justifiably  delayed,  or  the  legatee  himself  interposed  obstacles, 
or  assets  sufficient  were  not  then  available.      Yet  the  usual  rule, 


nothing  to  show  such  intention.     Dav-  *  171  Mass.  401,  404. 

enpoit  V.  Sargent,  63  N.  H.  538.     But  ^  Shirt  v.  Westby,  16  Ves.  393  ;  Clark 

where  legacies  are  given  generally,  and  7'-  Sewell,  3  Atk.  96 ;  Way  v.  Priest,  87 

the  residue  of  real  and  personal  estate  Mo.  180. 

is  given  afterwards  in   one  mass,   the  ''  Ma.xwell  v.  Wettenhall,  2  P.  Wms. 

legacies  are  charged  on  the  residue  of  27  ;  Wms.  Exrs.  1424,  1427  ;  Sullivan  z/. 

realty  as  well  as  personalty.     Cook  v.  Winthrop,  i  Sumner,  i. 

Lanning,  40  N.  J.  Eq.  369.  ^  Wood  v.  Penoyre,  13  Ves.  326,  and 

'  Webster  v.  Hale,  8  Ves.  410  ;  Law-  other  cases  cited  supra. 

rence  v.  Embree,  4  Bradf.  (N.  Y.)  Sur.  ^  Wms.     Exrs.    1427,   and    Perkins's 

364;  Bartlett  v.  Slater,  53  Conn.  102.  note;  Birdsall  v.  Hewlett,   i  Paige,  32. 

'^Kent  V.  Dunham,  106  Mass.  586.  'See  State  v.  Adams,  71  Mo.  620. 

^  Pearson  v.   Pearson,  i    Sch.  &  Lef. 
10, />cr  Lord  Redesdale. 

612 


CHAP.    IV.]     PAYMENT  AND   SATISFACTION   OF  LEGACIES.  §  482 

English  and  American,  has  been  that  pecuniary  legacies  bear 
interest  from  the  time  when  they  became  vested  and  payable 
under  legal  rules  or  the  express  terms  of  the  will,  provided  the 
estate  be  ever  in  a  condition  to  satisfy  them,  and  notwithstand- 
ing the  delay  was  occasioned  on  the  legatee's  part."  And,  if 
the  executor  has  sufficient  assets,  he  must  pay  interest  to  legatees 
from  the  end  of  the  twelve  months  whether  the  assets  have  been 
productive  or  not,^  all  intermediate  profit,  if  received,  going  to 
swell  the  general  bulk  of  the  estate.^ 

§  482.  Interest  on  Legacies  to  Children,  Wido-w,  etc. ;  and  other 
Special  Instances.  —  To  the  rule  for  delaying  a  reckoning  of  in- 
terest, well-settled  exceptions  exist  in  favor  of  young  offspring 
not  otherwise  provided  for  ;  '^  or  so  as  to  give  corresponding  sup- 


*  Wms.  Exrs.  1427  ;  Kent  v.  Dunham, 
106  Mass.  586 ;  Smith  v.  Field,  6  Dana, 
361  ;  Fowler  v.  Colt,  25  N.  J.  Eq.  202. 
In  Lyon  v.  Magagnos,  7  Gratt.  377,  the 
legatee  died  shortly  after  the  testatrix, 
and  there  was  no  administration  on  his 
estate  for  twelve  years  ;  and  yet  interest 
was  held  to  be  payable.  And  Lord 
Redesdale,  in  Pearson  v.  Pearson,  i 
Sch.  &  Lef.  ID,  mentions  a  case  where 
the  fund  did  not  come  to  be  disposable 
for  the  payment  of  legacies  till  nearly 
forty  years  after  the  death  of  the  testa- 
tor, and  yet  the  legacies  were  held  to 
bear  interest  from  the  year  after  the 
testator's  death. 

^  Pearson  v.  Pearson,  i  Sch.  &  Lef. 
10.  For  the  rule  as  to  compounding 
interest  in  case  of  delay,  see  Wms.  Exrs. 
1433;  2  P.  Wms.  26;  106  Mass.  586; 
post.  Part  Vn.  Interest  may  be  charged 
by  way  of  penalty  upon  the  representa- 
tive himself,  where  the  fault  of  delay  is 
his  own.  We  have  seen  that  the  benefi- 
ciary of  income  is  entitled  to  income  as 
computed  from  the  testator's  death. 
Supra,  §  479.  But,  as  to  a  legacy  in 
the  shape  of  an  annuity,  interest  is  not 
usually  computable  on  an  instalment 
until    tlitj    fust     twelve    months    have 

61 


elapsed.  Those  entitled  to  income  or 
annuity  are  usually  entitled  to  regular 
payments  after  the  first  year,  reckoning 
back,  but  not  to  interest  upon  income 
thus  regularly  paid.  See  Wms.  Exrs. 
1428 ;  8  Hare,  120. 

The  English  chancery  rule  computes 
the  rate  of  interest  payable  on  a  legacy 
at  four  per  cent. ;  unless  the  rate  should 
be  increased,  or  interest  compounded, 
because  of  the  representative's  breach 
of  trust  or  culpable  neglect.  Wms. 
Exrs.  1432,  1433;  Part.  WW.,  posf.  In 
the  United  States  the  rate  fixed  may  be 
greater.  27  N.  J.  Eq.  492.  But  the 
statute  rate  determines,  even  though 
trust  funds  usually  earn  a  lower  rate. 
Welch  ,'.  Adams,  152  Mass.  74;  17  ( 
Mass.  404. 

^  See  70  Iowa,  368  ;  §  469. 

■•  Harvey  z'.  Harvey,  2  P.  Wms.  21; 
Brown  v.  Temperly,  3  Russ.  263 ;  Mar- 
tin V.  Martin,  L.  R.  i  Eq.  369 ;  William- 
son V.  Williamson,  6  Paige,  298 ;  Wms. 
Exrs.  1429;  Magoffin  v.  Patton,  4 
Rawle,  113.  This  rule  is  enforced, 
even  though  the  will  should  expressly 
direct  an  accumulation  of  the  income. 
Mole  V.  Mole,  i  Dick.  310. 


§4«3 


EXFXUTORS    AND    ADMINISTRATORS. 


[part  V. 


port  to  a  widow  ;  or  where  in  consideration  of  her  release  of 
dower ;  or  so  as  to  pursue  special  directions  of  the  testator/  as 
where  he  gives  a  fund  in  trust  to  the  support  and  maintenance 
of  his  legatee.- 

§  483.  To  whom  Legacies  should  be  paid  ;  Deceased  Legatees; 
Infants,  Insane  Persons,  etc. — The  executor  is  bound  to  pay  each 
legacy  to  the  person  entitled  to  receive  it,  or  to  his  proper  legal 
representative.  If  the  legatee  has  deceased  since  the  testator/ 
his  executor  or  administrator  is  the  proper  representative ;  and  an 
appointment  may  be  needed  accordingly  for  the  express  purpose 
of  discharging  such  payment.'*  Where  the  legatee  is  an  infant, 
the  parent  or  natural  guardian  of  the  child  should  not  be  paid, 
nor  the  child  himself,  but  the  child's  probate  or  chancery  guar- 
dian duly  appointed  and  qualified. 5  Where,  too,  the  legatee  is 
insane,  the  qualified  guardian  or  committee  of  such  insane  per- 
son is,  in  American  probate  practice,  the  proper  person  to  re- 


'  I  Beav.  271  ;  Williamson  f.  Wil- 
liamson, 6  Paige,  298.  But  see  2  Penn. 
St.  221.  A  legacy  payable  at  a  future 
fixed  date,  or  on  a  future  contingency, 
carries  no  interest  in  such  legatee's 
favor,  as  a  rule,  until  the  date  arrives 
or  the  contingency  happens.  Wms. 
Exrs.  1428.  But  where  the  payment  of 
a  legacy  is  postponed  to  a  future  period, 
and  the  wll  directs  that  when  that 
period  arrives  payment  shall  be  made 
with  interest,  the  legacy  bears  interest 
from  the  end  of  the  year  after  the  testa- 
tor died.  Knight  v.  Knight,  2  Sim.  & 
Stu.  792 ;  2  Wms.  Exrs.  1430.  Com- 
pound interest  on  the  legacy  ^^nll,  if 
directed,  be  allowed  the  legatee.  Arnold 
V.  Arnold,  i  My.  &  K.  365  ;  Wms.  Exrs. 
1432,  1433;  Treves  v.  Townshend,  i 
Bro.  C.  C.  386;  WiUiams  v.  Powell,  15 
Beav.  461. 

-  Townsend's  Appeal,  106  Penn.  St. 
268. 

^  If  the  legatee  dies  before  the  tes- 
tator,  the  legacy   usually  lapses.     See 

6 


supra,  §  467;  Jones  v.  Letcher,  13  B. 
Mon.  363;   13  Phila.  406. 

"*  In  English  chancery  practice,  where 
a  legatee  of  a  residue  less  than  ;^2o  has 
died,  and  has  no  personal  representa- 
tive, distribution  among  his  next  of  kin 
is  permitted  without  requiring  adminis- 
tration to  be  taken  out.  2  Hemm.  & 
M.  32.  But  see  generally  as  to  requir- 
ing administration,  supra,  §  91. 

5  Schoul.  Dom.  Rel.  3d  ed.  §  302 ; 
Dagley  v.  Tolferry,  i  P.  Wms.  285 ; 
Miles  7'.  Boyden,  3  Pick.  213;  Genet  v. 
Tallmadge,  i  Johns.  Ch.  3;  Quinn  v. 
Moss,  12  Sm.  &  M.  365;  I  Uem.  160; 
94  Ga.  270.  Letters  of  probate  guar- 
dianship often  issue  in  American  prac- 
tice because  some  legacy  or  distributive 
share  vests.  But  English  chancery 
guardianship  is  so  costly,  that,  under 
Stat.  36  Geo.  III.  c.  52,  §  32,  the  exec- 
utor is  permitted  to  pay  such  legacies 
into  the  Bank  of  England  in  various 
cases.  See  Wms.  Exrs.  1406-1408; 
31  Beav.  48. 

14 


CHAP.    IV.]     PAYMENT  AND  SATISFACTION  ()!•    I.ECiAClES.  §   485 

ceive  the  legacy.'     An  equal  distribution  among  all  of  a  class 
should  be  made  where  the  will  so  designates.^ 

§  484.  To  whom  Legacies  should  be  paid;  Absentees,  Persons 
not  known,  etc.  —  Aside  from  legislation  expressly  providing  for 
the  case  of  absentees,^  the  executor  may  find  himself  embar- 
rassed with  respect  to  legacies  which  are  nominally  payable  to 
persons  who,  in  fact,  have  long  been  absent  and  missing,  and 
cannot  with  certainty  be  pronounced  alive  or  dead.  Probate 
courts  have  no  inherent  jurisdiction  of  questions  pertaining  to  the 
payment  of  legacies.  The  executor's  better  course,  when  left 
with  legacies  in  his  hands  awaiting  unknown  claimants,  appears 
to  be,  in  the  absence  of  positive  statute  direction,  to  trust  him- 
self to  the  guidance  of  chancery,  investing  or  disbursing  the 
fund  as  that  court  may  require.  Where  a  legatee  has  been 
long  absent,  sixteen  years  or  more,  without  being  heard  from, 
chancery  has  presumed  death,  in  various  instances ;  directing, 
it  may  be,  that  those  entitled  in  such  contingency  to  the  legacy, 
should,  upon  its  receipt,  furnish  security  to  refund  in  case  the 
legatee  should  ever  return.'' 

§  485.  To  whom  Legacies  should  be  paid  ;  Testamentary  Trus- 
tees, etc.  —  If  the  bequest  be  to  one  person  for  the  benefit  of 
others,  or  with  directions  to  expend  the  fund  for  the  use  of 
others,  either  generally,  or  in  a  particular  mode,  the  executor 

'  Schoul.    Dom.    Rel.   3d  ed.   §   293.  c.  52,  §  32,  permits  legacies  of  absentees 

As  to  married  women,  the  common-law  "beyond  the  seas  "to  be  turned,  like 

rule  has   now  so   completely  changed,  those  of  infants,  into  the  Bank  of  Eng- 

that,  in  general,  only  the  wife  herself  land.    See  Wms.  Exrs.  1407, 1421.    And 

can  receipt  for  her  separate  legacy,  and  see  Birkett,   AV,  L.   R.  9  Ch.  D.   576. 

it  cannot  be  paid  to  her  husband.     See  American    statutes,    somewhat    corre- 

Schoul.  IIus.  &  \Niie, passim.  sponding  in  tenor,  may  be  found;  but 

^  Rollins  V.  Rice,  59  N.  11.  493.  our  legislation  is  usually  with  reference 

TestatorgaveE.  $25,000,  and  ordered  rather    to    unclaimed    balances    in    an 

that  $8,000  of  said  sum  be  paid  over  to  administrator's  hands.     See  next  chap- 

T.  when  T.  should  arrive  at  the  age  of  ter. 

twenty-one;    keid,    that    the    executor  "  Dixon  z/.  Dixon,  3  Bro.  C.  C.  510; 

mast  pay  the  whole  to  E.,  who  became  Bailey  ?/.  Hammond,  7  Ves.  590;  Wms. 

T.'s  trustee.     Denton,   Re,    102   N.   Y.  Exrs.    1420.     See    Lewes'   Trusts,    AV, 

200.  L.  R.  1 1  Eq.  236. 

'The   English  statute,  36  Geo.  III. 

615 


§  485  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

may  safely  make  payment  to  such  person,  as  trustee,  without 
reference  to  the  parties  beneficially  interested."  It  is  customary 
in  modern  wills  for  the  testator  to  name  trustees  who  shall  hold 
funds  bequeathed  for  the  benefit  of  others,  or  for  special  pur- 
poses, such  as  charity,  and  wherever  a  full  legal  title  in  the 
beneficiary  is  suspended. 

Testamentary  trustees,  in  American  practice,  must  qualify 
and  receive  letters  from  the  probate  court  before  they  are  em- 
powered to  act  ;  nor  should  an  executor  place  the  trust  fund  in 
their  hands  until  they  have  conformed  to  statute.-  Even  though 
the  same  person  be  constituted  executor  and  trustee  under  the 
will,  he  must  procure  his  credentials  as  trustee  in  due  form,  as 
preliminary  to  holding  and  managing  the  fund  in  his  new  ca- 
pacity.^ So,  too,  he  must  show  some  act  done  to  change  the 
character  of  his  holding  and  to  place  the  fund  properly,  before 
he  can  be  discharged  as  executor  therefor.'*  Where  the  testa- 
tor omits  to  name  a  trustee,  or  the  trustee  named  is  disqualified, 
or  declines  to  act,  or  a  vacancy  afterwards  occurs  from  any 
cause,  proceedings  may  usually  be  had,  in  American  practice, 
for  filling  the  office  by  probate  appointment. 5     But  where  per- 

'  Cooper  V.  Thornton,  3  Bro.  C.  C.  be  blended.  Wheatley  v.  Badger,  7 
96;  Robinson  v.  Tickell,  8  Ves.  142;  Penn.  St.  459.  And  see  su/>ra,  §  472. 
supra,  §  472.  As  to  transferring  from  one  capacity  to 
~  Newcomb  v.  Williams,  9  Met.  535.  the  other  where  the  same  person  is  ex- 
3  See  Miller  v.  Congdon,  14  Gray,  ecutor  and  trustee,  see  stipra,%  247; 
114.  Wms.  Exrs.  1399,  and  Perkins's  note. 
■•  Sanborn's  Estate,  109  Mich.  191.  It  may  happen  that  a  particular  fund 
5  See  local  statutes  as  to  appointing  or  the  residue  of  the  estate  is  to  be  in- 
testamentary  trustees.  Smith  Prob.  vested  in  good  and  productive  securi- 
Pract.  90-93 ;  also  Lord  Alvanley  in  tics,  and  held,  by  the  true  intendment 
Cooper  V.  Thornton,  3  Bro.  C.  C.  96;  of  the  will,  in  trust  by  the  executor 
Wms.  Exrs.  1796.  If  a  legacy  is  given  himself,  for  purposes  of  accumulation  ; 
in  trust,  no  person  being  named  as  or,  so  as  to  pay  out  income  only,  until 
trustee,  it  may  be  incumbent  on  the  ex-  some  prescribed  period  has  elapsed,  or 
ecutor  as  such  to  administer  the  same  a  certain  contingency  happened  ;  where- 
according  to  the  provisions  of  the  will,  upon  the  principal  .shall  be  paid  by  him 
Groton  J'.  Ruggles,  17  Me.  137.  Where,  to  the  person  or  persons  ultimately  en- 
however,  the  testator  appointed  one  to  titled  thereto  under  the  will,  or  in  de- 
be  his  sole  executor,  and  bequeathed  to  fault  of  such  ultimate  disposition,  to 
him  "his  executor  and  trustee,"  his  those  entitled  under  statutes  of  distri- 
pioperty  in  trust,  the  offices  of  executor  bution  in  case  of  inte.<;tacy.  See  (Jar- 
and  trustee  are  distinct,  and  must  not  son  v.  Carson,  6  Allen,  299;  .Millers. 

616 


CHAP.  IV.]  PAYMENT  AND  SATISFACTION  OF  LEGACIES.     §  487 

sonal  property  is  given  in  trust,  the  executor  should  protect  and 
preserve  the  property  until  a  trustee  has  been  appointed  ; '  and 
in  special  instances  he  may  be  compelled  to  act  and  account  as 
trustee.'' 

§  486.    Delivery  of  Specific   Legacies  ;   Legatee's  Right  to  select. 

—  Specific  things  bequeathed  should  be  identified  and  delivered 
to  the  respective  legatees,  as  directed  by  the  will.  Where  the 
testator  bequeaths  a  number  of  things,  out  of  a  larger  number 
belonging  to  him,  —  as  in  a  bequest  of  "  ten  of  the  horses  in  my 
stable,"  —  it  is  held  that  the  legatee  has  a  right  of  selection  from 
the  number.^  But  where  the  entire  fund  is  bestowed  in  parcels, 
to  be  divided  among  different  legatees,  such  individual  selection 
would  be  impracticable.'*  The  direction  of  the  will  as  to  such 
legacies  should  be  followed.^ 

§  487.  Method  of  paying  General  Legacies;  Currency,  Deduc- 
tions, etc.  —  The  presumption  is  that  general  legacies  shall  be 
paid  in  lawful  money.''     But  a  testator  may  require  any  general 

Congdon,  14  Gray,  114.     However  un-         '  Where  a  testatrix  gave  her  son  one 

usual  in  extent  and  character  may  be  undivided  tenth  of  her  estate,  with  the 

the  functions  thus  exercised  by  him,  the  provision  that  it  should  be  indorsed  on 

executor  is  bound  to  a  just  and  rightful  a   certain    note   which     he    owed    her 

performance;    and    his    official    bond,  daughter,  the  executor  was  held  bound 

though    expressed    after   the    ordinary  to  appropriate  the  legacy  to  the  payment 

tenor,  stands  as  security  that  the  obli-  of  such  note,  and  to   pay  the  residue 

gations  he  has  incurred  shall  be  faith-  only,  if  any,  to  the  legatee.    Low  f.  Low, 

fully  performed  in  all  respects.     W^ms.  77  Me.  171. 

Exrs.  1 399,  and  Perkins's  note ;  Dorr  v.         Where  the  executor  delivers  a  specific 

Wainwright,  13  Pick.  328  ;  Sheet's  Es-  legacy  or  a  specific  fund  to  the  life  ben- 

tate,  52  Penn.  St.  257  ;  Lansing  z'.  Lans-  eficiary  and  takes  a  proper  receipt  or  in- 

ing,  45  Barb.  182.  ventory  for  the  remainderman,  the  leg- 

'  As  where  the  trustee  named  refuses  acy   or    fund     having    been     thus  be- 
to  serve,  and  there  is  a  delay  in  appoint-  queathed,  he  is  discharged  from  further 
ing  another.     Casperson  v.   Dunn,  42  duty  or  Hability.     52  N.J.  Eq.  611. 
N.  J.  Eq.  87  ;  §  248.  *  Rates  of  exchange  in  payments  will 

^  Hodge's  Estate,  63  Vt.  661.        *  be  reckoned  accordingly.     Wms.  Exrs. 

^  Jacques  z*.  Chambers,  2   Col.   435;  1433-1435;  Lansdowne  i'.  Lansdowne, 

Wms.  Exrs.  1440.  2    Bligh,    91  ;  Bowditch   v.    Soltyk,    99 

*  In  such  case  the  legatees  may  well  Mass.   136;  Yates  v.  Maddan,    16  Sim. 

abideby  the  executor's  selection,  if  they  613.     As  to  payment  in  "confederate 

cannot    agree;    but,    otherwise,    equity  money,"  see  79  Va.  1 18. 
must  decide.     lb. 

617 


§  48  <S 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


legacy  to  be  paid  in  a  particular  currency  or  coin,  or  in  specified 
securities  or  property.'  In  either  case  an  executor  does  not  dis- 
charge himself  when  he  turns  over  worthless  or  desperate  se- 
curities by  imposing  on  the  young  or  inexperienced.^  Debt  lies 
to  recover  a  legacy  on  a  decree  of  the  probate  court  in  our  local 
practice.^ 

Legacies  are  payable  without  deduction  for  expense  of  ad- 
ministration, although  they  are  paid  out  of  real  estate  upon  which 
they  are  charged.-*  But  a  legacy  tax  may  be  payable  under  local 
statute.  5 

§  488.  Assent  of  the  Executor  to  a  Legacy.  —  The  theory  of 
our  law  is,  that  the  title  of  a  legatee,  whether  specific  or  gen- 
eral, does  not  become  complete  and  perfect,  until  the  executor 
assents  to  the  legacy.^  But,  as  an  executor's  wishes  are  not  to 
control  those  of  his  testator,  the  object  of  the  requirement  ap- 
pears to  be  nothing  more  than  to  await  the  executor's  reasonable 


'  Sheffield  v.  Lord  Coventry,  2  Russ. 
&  My.  317;  Banks  7'.  Sladen,  i  Russ. 
&  My.  216;   King  t.  Talbot,    50   Barb. 

453- 

An  executor  is  not  bound  to  search 
out  a  legatee;  it  is  enough  if  he  is  al- 
ways ready  when  called  upon  to  pay  the 
legacy.  Thompson  ?'.  Youngblood,  i 
Bay  (S.  C.)  248  ;  Hemphill  v.  Moody, 
62  Ala.  510.  Vet,  as  the  executor  must 
be  ready  to  pay  interest  on  the  legacy 
after  one  year,  he  should  invest  the 
amount  or  else  pay  it  into  court  to  be 
invested.  Lyon  7j.  Magagnos,  7  Graft. 
377 ;  supra,  §  323.     And  see  60  N.  H. 

377- 

A  legatee  or  distributee  may,  if  S2ii 
juris,  receipt  and  release  for  what  is 
due  him.  As  to  taking  the  fiduciary's 
own  note  for  the  amount,  see  Lawton 
V.  Fish,  51  Ga.  647;  9  N.  J.  Eq.  3r4. 
As  to  form  of  decree  for  distiibution  of 
a  legacy  where  there  is  a  doubt  con- 
cerning the  person  entitled,  see  3  Dem. 
282. 

*  I  Dem.  568.     See  also  f.'oddington 

61 


V.  Stone,  36  N.  J.   Eq.  361  ;   loi  N.  Y. 

311- 

3  Weeks  v.  Sowles,  58  Vt.  696.  See 
§  488. 

■*  Hays's  Estate,  153  Penn.  St.  328. 

^  Whether  legacies  are  liable  to  legacy 
duty,  etc.,  or  not,  is  a  familiar  subject  in 
English  practice.  (1894)  i  Ch.  286. 
And  in  this  country  at  the  present  time 
(1900),  we  find  legacy  and  succession 
taxes  imposed  both  by  Federal  and  State 
legislation,  so  as  often  to  constitute  a 
double  burden  to  the  estate  of  a  wealthy 
person. 

That  legacies  may  by  mutual  agree- 
ment be  settled  by  appropriating  specific 
assets  of  the  estate  as  equivalent  for 
cash,  see  Dowsett  v.  Culver,  (1892)  i 
Ch.  210;  §  506. 

'••Wms.  Exrs.  1372;  Northey  7/. 
Northey,  2  Atk.  77  ;  Nunn  v.  Owens, 
2  Strobh.  loi  ;  Refeld  v.  Belette,  14 
Ark.  148  ;  Lott  v.  Meacham,  4  Fla.  144  ; 
Crist  V.  Crist,  i  Ind.  570 ;  Finch  v. 
Rogers,  11  Humph.  559. 


CHAP.   IV.]     PAYMENT  AND   SATISFACTION  OF   I.K(  lACl  ES.  §  488 

convenience.  Consequently,  a  legatee  has  no  right  to  take  pos- 
session of  his  legacy  and  exercise  full  dominion  over  it,  pending 
administration  ;  nor  could  the  testator  himself  have  conferred 
such  a  privilege  without  imperilling  prior  rights.'  Even  though 
the  legacy  were  of  a  specific  chattel,  trespass,  trover,  replevin, 
and  other  remedies  founded  in  possessory  rights,  are  inappro- 
priate to  the  legatee's  title  before  the  executor  has  surrendered 
his  own ;  ^  nor  should  the  legatee's  sale  and  transfer  give  an 
indefeasible  title  to  the  purchaser. 

Should,  however,  the  executor  unreasonably  withhold  his  as- 
sent to  the  legac)^,  a  court  of  equity  will  compel  him  to  yield  it.^ 
Assent,  moreover,  may  be  express  or  implied,  the  question  being 
one  of  fact.'*  If  the  executor  notifies  the  legatee  that  he  is 
ready  to  pay  whenever  the  legatee  calls,  there  is  a  clear  assent ;  5 
but  not  where  he  merely  congratulates ;  ^  nor  should  the  assent 
of  one  who  is  named  executor  avail  where  another  qualifies  and 
administers.7  A  premature  assent  should  not  be  readily  inferred 
from  doubtful  acts  or  expressions,^ 


'  Wms.  Exrs.  1372. 

^  Northey  v.  Northey,  2  Atk.  77. 

3  No  action  will  lie  at  law  to  recover 
the  legacy  before  assent  is  given,  but 
equity  regards  the  executor  as  a  trustee, 
and  compels  him  to  assent  where  he 
ought  to  do  so.  Lark  v.  Linstead,  2 
Md.  Ch.  162;  Wms.  Exrs.  1375  ;  Nancy 
V.  Snell,  6  Dana,  148;  Price  v.  Nesbit, 
I  Hill  Ch.  445 ;  Crist  v.  Crist,  i  Ind. 
570. 

*  George  v.  Goldsby,  23  Ala.  326 ; 
Refeld  v.  Belette,  14  Ark.  148;  Crist  v. 
Crist,  I  Ind.  570;  Elliott  v.  Elliott,  9 
M.  &  W.  27;  Buffaloe  v.  Baugh,  12 
I  red.  201. 

5  Barnard  v.  Pumfrett,  5  My.  &  Cr. 
70. 

''Wms.  Exrs.  1376,  criticising  Shep. 
Touchst.  456. 

^  White  V.  White,  4  Dev.  &  Bat.  401. 
If  an  executor  assents  before  letters 
testamentary  are  issued  to  him,  his  as- 
sent will  not  pass  the  legal  title,  nor 
bind   the   estate  which    he   represents. 

6 


Gardner  v.  Gantt,  19  Ala.  666.  But 
English  cases  have  held,  relying  upon 
the  older  doctrine  .so  inconsistent  with 
our  modern  legislative  policy,  that  the 
executor's  authority  being  derived  from 
the  will,  he  may  assent  before  probate. 
Wms.  Exrs.  303,  1378. 

^George  v.  Goldsby,  23  Ala.  326; 
Wms.  Exrs.  1376  ;  Burkhead  v.  Colson, 
2  Dev.  &  Bat.  Eq.  77;   112   Penn.  St. 

390- 

Should  the  legatee  have  or  gain  pos- 
session of  the  thing  bequeathed,  with- 
out the  executor's  assent,  the  executor, 
it  would  seem,  may  recover  it  from  him 
by  action  at  law,  in  trespass  or  trover, 
by  virtue  of  his  better  title.  Wms. 
Exrs.  1374  ;  Mead  v.  Orrery,  3  Atk.  239. 
For,  until  after  his  assent  to  the  legacy, 
the  executor  has  not  only  a  bare  author- 
ity, but  the  interest  in  the  thing  be- 
queathed. 3  Atk.  235,  239.  In  gen- 
eral, the  right  to  recover  and  collect 
assets  is  in  the  executor.  And  yet  re- 
tention of  the  legacy  for  a  considerable 

19 


§  488  EXECUTORS    AND    ADMINISTRATORS.  [PART   V. 

The  effect  of  the  executor's  assent  to  a  legacy  is,  that  the 
specific  thing"  bequeathed  ceases  at  once  to  be  part  of  the  testa- 
tor's assets,  and  the  legal  title  of  the  legatee  thereto  becomes 
perfect  ; '  and  this  notwithstanding  the  assets  prove  afterwards 
insufficient  to  pay  the  debts.^ 

As  to  legacies  not  specific,  the  practical  effect  of  the  execu- 
tor's mere  assent  appears  of  less  consequence,  as  in  the  former 
case,  to  deliver  it.  There  ensues  a  sort  of  contract  obligation 
to  pay  the  legacy,  which  obligation  may  be  enforced  in  equity ; 
but,  unless  a  specific  fund  has  been  set  aside  in  consequence, 
nothing  can  be  identified  upon  which  the  legatee's  legal  title 
actually  attaches.^ 

Where  the  executor  is  himself  a  legatee,  assent  to  his  own 
legacy  is  needful.  And,  until  his  express  or  implied  assent  to 
the  legacy  has  been  given  in  such  a  case,  the  qualified  executor 
holds  the  specified  thing  or  fund  in  his  representative  capacity, 
even  though  all  the  debts  have  been  paid  ;  for  the  rule  is,  that 
one's  assent  cannot  be  inferred  from  acts  equally  applicable  to 
the  title  of  legatee  and  executor.-*  If  the  executor  is  residuary 
legatee  he  occupies  such  dual  relation  to  the  estate  that  the 

time,  without  complaint  by  the  executor,  George  v.  Goldsby,  23  Ala.  326.     Where 

may  conclude  the  latter,  if  the  thing  or  there  are  joint  executors,  the  assent  of 

fund  be  not  needed  for  administration;  one  will  suffice.     Wms.  Exrs.  948,  1378; 

since  assent  may  be  given  by  acquies-  Boone  v.  Dyke,  3  T.  B.  Mon.  529.     A 

cence,  and  without  an  actual  transfer  of  setting  apart  of  certain  property  by  the 

possession.     Andrews  v.  Hunneman,  6  executor    alone    amounts    to    nothing 

Pick.  126;  Spniil  v.   Spruil,  2   Murph.  more  than  a  mere  mental  determination, 

175;  Jordan  v.  Thornton,  7   Ga.  517;  and  does  not  bind  the  estate.     Sherman 

Eberstein    v.    Camp,    37     Mich.     176.  z/.  Jerome,  120  U.  S.  319.     As  to  a  pre- 

When  executors  die,  after  the  debts  are  sumed  assent  after  lapse  of  time,  etc., 

paid,  but  before  the  legacies  are  satis-  see  75  Ga.  285.     A  complaint  for  al- 

fied,  their  assent  will  sometimes  be  pre-  lowance  of  a  legacy  may  be  made  in 

sumed.     Cray  v.  W^illis,  2  P.  Wms.  531  ;  some  States  to  the  probate  court  in  the 

Wms.  Exrs.  1377.     So  may  the  execu-  form  of  a  claim  upon  the  estate.     97 

tor's  assent  be  given  conditionally  in-  Ind.  289.     And  see  §  487. 

stead  of  absolutely.     Wms.  Exrs.  1378;  '  Nancy  v.  Snell,  6  Dana,  148. 

Lillard   v.    Reynolds,   3    Ired.   366.     In  ^  lb. 

short,  assent  may  be  inferred  either  on  ^Andrews  v.  Hunneman,  6  Pick.  129; 

the  presumption  that  an  executor  meant  Wms.  Exrs.  1372;   Dunham  v.  Elford, 

to  do  what  was  his  duty,  or  from  some  13  Rich.  Eq.  190. 

act  or  expression  on  his  part  which  rec-  ■*  Doe  v.  Sturges,  7  Taunt.  223  ;  Com. 

ognized  the  legatee's  present  right  to  Dig.  Adm.  6;   Wms.  Exrs.  1382. 
receive  the  legacy.     See  per  ciiriatn  in 

620 


CHAP.    IV.]     PAYMENT   AND  .SATISFACTION   OI"   I.KGACIES.  §   4S9 

court  retains  control  of  his  official  acts  until  the  estate  is  admin- 
istered and  the  residue  turned  over  properly.' 

§  489.  Legatee's  Assent  to  the  Legacy ;  Election.  —  There  is 
another  element  in  the  acquisition  of  title  to  a  legacy  :  namely,  the 
legatee's  assent.  A  will  being  once  established  in  probate,  each 
legatee  is  readily  presumed  to  assent  to  his  own  legacy,  whether 
larger  or  smaller  than  what  he  might  reasonably  have  expected. 
Yet  the  legatee's  assent  to  his  legacy  is  a  legal  pre-requisite  to 
the  completion  of  the  gift  ;  for  no  one  can  be  made  the  benefi- 
ciary of  another  against  his  own  wish  ;  and,  where  a  bequest  is 
coupled  with  onerous  conditions  or  trusts,  as  in  various  instances 
of  charity,  or  some  public  corporation  is  legatee,  a  formal  accept- 
ance or  assent  will  often  precede  with  propriety  the  payment  or 
delivery  by  the  executor.  The  simple  bequest  to  an  individual, 
however,  is  usually  assumed  to  have  been  accepted  unless  posi- 
tively declined  ;  and  an  actual  acceptance,  without  reservation, 
of  the  money  or  specific  thing  bequeathed  concludes  the  matter. 
Should  the  legatee  refuse  to  accept,  and  disclaim  all  title  to  the 
legacy,  his  refusal  or  relinquishment  given  sui  juris,  would  oper- 
ate to  divest  his  interest,  and  subject  the  property  thus  be- 
queathed to  distribution  as  in  the  case  of  intestacy.^ 

We  further  observe  that  a  beneficiary  named  in  a  will  may 
sometimes  be  put  to  his  legal  election  whether  to  take  the  ben- 
efit thereof  or  stand  upon  his  own  rights  regardless  of  it.^     In 

'  Ridgley   v.    People,    163    111.     112.  must  be  acceptance /;/ /c/o   or  rejection 

When  an  executor  assents  to  a  legacy  in   toto  of   what   the   testator  has    be- 

given  for  life  with  a  remainder  over,  queathed  to    him.     Talbot  -'.   Radnor, 

the  assent  extends  also  to  the  remainder  3  My.  &  K.  254.     But  the  intention  of 

and  his  control  over  the  legacy  ceases,  the  testator  expressed  in  the  will  con- 

McKoy  t/.  Guirkin,  102  N.  C.  21.     See  trols  the  question.     Long  v.   Kent,  11 

Murphee  v.  Singleton,  37  Ala.  412.     As  Jur.  N.  s.  824  ;  Wms.  Exrs.  1448. 
to  dispensing  with  assent,  see  2  Sm.  &         ^  ^g    ^q    the   widow's    election,    see 

M.  527.  §  457a.     And  under  recent  legi.slation, 

^Walker  v.  Bradbury,  15  Me.  207.  recognizing  a  married  woman's  will,  a 
Where,  of  cumulative  laequests  to  the  corresponding  election  is  sometimes  ex- 
same  person,  one  is  onerous  and  the  ercisable  by  the  husband.  See  Sch. 
other  beneficial,  the  legatee  cannot  ac-  Wills,  §§  56-58.  A  beneficiary  under  a 
cept  one  and  reject  the  other;  nor,  of  will  which  disposes  of  property  owned 
course,  can  a  legacy  be  accepted  apart  by  him  must  elect  either  to  claim  his 
from    its    essential    restrictions ;    there  own  property  or  to  take  under  the  will. 

621 


§   490  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

general  one  must  elect  to  wholly  abide  by  the  will  or  wholly 
repudiate  its  benefits. 

§  490.  Abatement  of  Legacies  in  Case  of  Deficient  Assets.  — 
Next  in  order,  after  collecting  the  assets  and  paying  or  provid- 
ing for  the  due  adjustment  of  all  valid  debts,  claims,  and  charges 
against  his  testator's  estate,  an  executor  naturally  regards  the 
delivery  of  specific  legacies  ;  for  these  are  not  to  be  abated  under 
ordinary  circumstances,  being  answerable  for  debts  only  as  a 
last  resort,  and  for  general  legacies  scarcely  at  all.'  If,  however, 
the  will  creates  exceptional  conditions,  as  where  general  legacies 
are  made  an  express  charge  upon  the  specified  legacies  or  upon 
the  personal  property,  and  there  is  no  other  fund  which  can 
satisfy  such  bequests,  the  rule  is  different.^  Legacies,  by  a  suit- 
able construction  of  the  will,  may  be  charged,  sometimes,  upon 
the  testator's  land.^ 

So  long  as  there  remain  assets  not  specifically  bequeathed  to 
appropriate  to  legal  debts  and  charges  against  the  estate,  specific 
bequests  cannot  be  disturbed,  though  general  legacies  be  swal- 
lowed up ;  it  is  only  when,  the  residuary  and  other  general  legacies 
sacrificed,  nothing  remains  of  the  personal  estate  for  satisfying 
legal  debts  and  charges  but  what  was  specifically  bequeathed, 
that  specific  and  demonstrative  legatees  can  be  compelled  to 
contribute  ;  and,  in  such  case,  abatement  shall  be  proportioned 
to  the  value  of  their  respective  legacies.-*  For  it  should  be  borne 
in  mind  that  all  legacies,  specific  or  general,  are  postponed  to 
the  prior  payment  of  all  debts  against  the  estate.^ 

Van  Schaack  z'.  Leonard,  164  111.  602;  rity  for  their  payment,  and  do  not  abate 

Hyatt  7A  Vanneck,  82  Md.  465  ;  82  Wis.  with    general   legacies.     Supra,    §461; 

364;  92  Va.  307;   148  N.  Y.  410.     But  4  Ves.  150;  Creed  v.   Creed,   11    CI.  & 

specific  portions  of  a  legacy  to  a  town  Fin.  509. 

for  different  de.signated  purposes,  may  '  McCorn  v.  McCorn,  100  N.  Y.  511. 

be  severally  accepted  or  rejected.    Web-  *  Barton  v.  Cooke,  5  Ves.  461  ;  Sleech 

ster  V.  Wiggin,  19  R.  I.  73.     For  here  v.  Thorington,  2  Ves.  Sen.  561  ;  Wms. 

there  are  severable  bequests  in  effect  to  Exrs.  1371. 

different  beneficiaries.  '  Ford   v.   Westervelt,  55   N.  J.  Eq. 

'  Wms.  Exrs.  1359,  1360.  585;  §476.     Where  neither  debts  nor 

^  Prec.  Ch.   393 ;   White  v.  Green,  r  legacies  are  chargeable  upon  realty,  the 

Ired.  Eq.  45;  25   N.  Y.   128.     Demon-  personalty  must  first  be  apphed  to  pay- 

strative  legacies  have  a  presumed  secu-  ing    the    debts.     lb.     See   §  509,   etc. 

622 


CHAP.   IV.]     PAYMENT  AND  SATISFACTION  OF  LEGACIES.  §  490 

General  legacies  rank  together  ;  so  that  whatever  remains  over 
and  above  satisfying  the  legal  debts,  demands,  and  charges 
against  the  estate  and  specific  legacies,  must  be  applied  to  gen- 
eral legacies  in  proportion  to  their  amount,  until  they  are  fully 
paid.'  It  follows,  that  where  the  estate  is  scarcely  enough,  or 
less  than  enough,  to  pay  such  general  legatees  in  full,  the  resid- 
uary legatee  must  be  the  sufferer.^  But  legacies  upon  a  meri- 
torious consideration  are  preferred  to  other  general  legacies.^ 


The  doctrine  of  marshalling  assets  is 
specially  considered  in  connection  with 
the  charge  or  exoneration  of  real  estate ; 
but  as  to  personalty  generally,  regarded 
as  assets  for  debts  and  legacies,  and 
where  the  will  has  made  no  express  di- 
rections to  the  contrary,  a  deficiency  of 
assets  is  to  be  made  up,  by  charging 
these  classes  in  order:  (i)  Residuary 
legacies;  (2)  general  legacies,  with  the 
exception  of  (3)  legacies  given  for  a  val- 
uable consideration;  {4)  specific  and 
demonstrative  legacies.  We  apprehend, 
however,  that,  as  concerns  a  partial  de- 
ficiency, this  order  may  be  varied  con- 
siderably, by  explicit  language  in  the 
will,  giving  precedence  out  of  course  to 
a  particular  legacy.  Lewin  v.  Lewin,  2 
Ves.  Sen.  415;  Marsh  v.  Evans,  i  P. 
Wms.  668  ;  83  Md.  104,  115  ;  N.  C.  398. 

'  Wms.  Exrs.  1359;  78  Me.  233; 
Mollan  V.  Griffith,  3  Paige,  402. 

^  lb.  Where  the  testator  appears 
not  to  have  contemplated  the  possible 
failure  of  assets  sufficient  to  meet  the 
legacies  named,  the  presumption  of  in- 
tended equality  prevails  between  gen- 
eral legatees,  as  to  meeting  all  defi- 
ciency. Emery  v.  Batchelder,  78  Me. 
233.  An  indiscriminate  residuary  be- 
quest of  realty  and  personalty  charges 
the  whole  with  the  payment  of  prior 
legacies.     61  Miss.  372. 

The  usual  priority  among  legatees 
may  be  varied  by  the  special  directions 
of  the  will.  See  Dey  v.  Dey,  4  C.  E. 
Green,  137;  Lewin  v.  Lewin,  2  Ves. 
Sen.  415;  Marsh  v.  Evans,  i    P.  Wms. 

62 


668 ;  Brown  v.  Brown,  i  Keen,  275 ; 
Haynes  v.  Haynes,  3  De  G.  M.  &  G. 
590;  Towle  V.  Swasey,  106  Mass.  100. 
Local  statutes,  too,  may  be  found  to 
modify  the  rule.  See,  as  to  a  post- 
testamentary  child,  5  Paige,  588. 

^  Legacies  given  for  a  valuable  con- 
sideration are  preferred  to  other  general 
legacies,  when  abatement  is  necessary, 
because,  doubtless,  of  their  quasi  obliga- 
tory character.  Burridge  v.  Bradyl,  i 
P.  Wms.  127;  Ambl.  244;  Blower  v. 
Morret,  2  Ves.  Sen.  420 ;  Norcott  v. 
Gordon,  14  Sim.  258  ;  Wms.  Exrs.  1364 ; 
Wood  V.  Vandenburgh,  6  Paige,  277 ; 
Clayton  v.  Akin,  38  Ga.  300 ;  Pollard  v. 
Pollard,  I  Allen,  490.  Cf.  §  432.  It 
might  be  thought  that, ,  regarded  as 
debts,  they  should,  to  the  extent  of  the 
consideration,  and  not  farther,  rank 
above  all  legacies,  even  specific  ones; 
but  courts  do  not  appear  to  apply  this 
preference  with  so  nice  a  sense  of  jus- 
tice ;  and,  on  the  one  hand,  specific 
legacies  will  take  full  precedence,  while, 
on  the  other,  as  among  general  legacies, 
these  have  been  excepted  to  their  full 
amount,  even  though  the  bequest  should 
exceed  the  value  of  its  actual  considera- 
tion. Towle  V.  Swasey,  106  Mass.  106; 
Ambl.  244.  Among  general  legacies 
thus  privileged,  are  those  given  in  con- 
sideration of  a  debt  actually  owing  to 
the  legatee,  or  of  the  relinquishment  of 
a  widow's  dower.  Burridge  v.  Bradyl, 
and  other  cases  cited  supra  ;  Borden  v. 
Jenks,  140  Mass.  562.  It  is  essential, 
however,  to  this  privilege,  that  the  con- 

.3 


s  490^ 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


§  4gO(2.  Personalty  the  Primary  Fund  for  Payment  of  Leg- 
acies;  Exceptions.  —  It  is  well  settled  that  the  personal  estate 
constitutes  the  primary  fund  for  settling  all  the  personal  obli- 
gations of  a  decedent  ;  and  next  to  debts  and  claims  upon  legal 
consideration,  legacies  should  be  thus  satisfied ;  with  such  fur- 
ther resort  to  realty,  in  case  of  a  deficiency  of  assets,  as  may  be 
permissible.'  I3ut  legacies  are  sometimes  made  expressly  charge- 
able by  one's  will  upon  the  real  estate  devised.^ 

While  the  true  intendment  of  the  will  must  be  the  criterion 
in  case  of  doubt,  it  is  even  held  that  the  personal  estate  is  not 
only  the  primary,  but  prima  facie  the  exclusive  fund  for  the  pay- 
ment of  legacies,  even  though  it  should  appear  that  the  testator 
had  no  personal  property  when  the  will  was  executed.  It  fol- 
lows that  where  one  dies  without  leaving  sufficient  personal 
estate  for  the  payment  of  his  bequests,  they  must  be  adeemed 
wholly  or  pro  tanto,  unless  there  is  something  discoverable  from 


sideration  should  subsist  at  the  testator's 
death ;  and,  hence,  legacies  given  to 
creditors  whose  claims  had  been  com- 
]>ounded  and  released  during  the  life  of 
the  testator,  Davies  v.  Bush,  i  Younge, 
341  ;  Coppin57.  Coppin,  2  P.  Wms.  291  ; 
or  provisions  nominally  in  lieu  of  dower, 
where  the  testator  has  left  no  dowable 
lands,  are  voluntary  merely.  Acey  v. 
Simpson,  5  Beav.  35 ;  L.  R.  3  Ch.  D. 
714.  And  the  same  may  be  said  of  a 
legacy  given  to  pay  off  another  person's 
debts.  Shirt  v.  West  by,  16  Ves.  396. 
The  meritorious  object  of  a  voluntary 
bequest,  moreover,  will  not  entitle  it  to 
pre-eminence  above  other  general  lega- 
cies given  by  way  of  bounty;  and,  aside 
from  provisions  which  properly  defray 
the  incidental  e.xpenses  of  funeral  and 
administration,  legacies  given  for  mourn- 
ing rings,  or  to  recompense  executors 
for  their  care  and  trouble,  are  liable  to 
abatement  in  the  usual  proportion. 
Apreece  v.  Apreece,  i  Ves.  &  B.  364  ; 
Kretwell  v.  Stacy,  2  Vern.  434  ;  Duncan 
V.  Watts,  16  Beav.  204 ;  Wms.  Exrs. 
1366.  In  American  States,  however, 
where  compensation  is  regularly  allowed 


to  executors  for  their  services,  a  legacy 
given  by  way  of  recompense,  might, 
perhaps,  be  pronounced  a  legacy  upon 
valid  consideration ;  but,  even  were  it 
abated,  the  executor  would  not  be 
thereby  debarred,  we  presume,  from  re- 
ceiving his  full  compensation  on  the 
usual  footing  of  such  officials.  See 
Part  VII.,  c.  2,  on  this  point.  The  re- 
port, in  I  P.  Wms.  423,  appears  to 
sanction  the  exemption  of  a  legacy  left 
for  building  a  monument  to  the  memory 
of  a  relation ;  but  there  is  here  some 
error.  See  Wms.  Exrs.  1366,  and  note ; 
I  Bro.  C.  C.  390 ;  6  Paige,  277.  Lega- 
cies to  servants,  or  for  charities,  cannot 
claim  precedence.  Attorney  General  v. 
Robins,  2  P.  Wms.  25 ;  Wms.  Exrs. 
1366. 

'See  §§5,  212-215,  5°9-5i7;  Bank 
of  Ireland  v.  McCarthy,  (1898)  A.  C. 
181. 

^  But  even  here  the  presumption  is 
that  personalty  shall  be  the  primary 
fund,  in  absence  of  clear  direction  to 
the  contrary.  Knight  v.  Knight,  (1895) 
I  Ch.  499.  See  Lloyd's  Estate,  174 
Penn.  St.  184. 


624 


CHAP.  IW]  PAYMKNT  AND  SATISFACTION  ()!■  l.K( .  At:i  K.s.     §  49 1 

the  will,  expressly  or  by  inference,  to  denote  an  intention  to 
charge  one's  real  estate  with  the  payment.'  Whether  an  exec- 
utor, who  is  also  a  devisee,  becomes  personally  or  as  executor 
bound  to  pay  such  legacies,  depends  upon  his  promise  express 
or  implied.^ 

§  49 1 .    The   Refunding  of  Legacies  after  their  Payment.  —  The 

general  rule  appears  to  be  well  settled,  that  after  the  executor 
has  once  voluntarily  paid  a  legacy  without  reservation,  he  can- 
not at  discretion  force  the  legatee  to  refund. ^  Where,  however, 
the  assets  are  found  deficient  for  meeting  the  lawful  debts  and 
charges,  the  executor  may,  by  a  bill  in  equity,  compel  legatees 
to  refund  what  may  have  been  already  overpaid  to  them  ;  ^ 
though  equity  will  not  make  legatees  refund  for  the  sake  of  re- 
pairing losses  occasioned  by  the  executor's  waste ;  5  nor  while 
unappropriated  assets  remain  for  administration  purposes.^ 

Creditors  cannot,  however,  be  debarred  of  their  prior  rights 
by  the  executor's  imprudence  or  misconduct,  but  may  in  all 
cases  pursue  assets  into  the  hands  of  legatees,  where  their  own 
lawful  demands  remain  unsatisfied  ;  and  the  satisfied  legatee, 
whether  paid  by  the  executor  voluntarily  or  under  the  sanction 
of  chancery,  may,  by  chancery,  be  compelled  to  refund.^  Where 
chancery  has  administered  the  fund,  however,  a  particular  lega- 

'  Duvall's  Estate,  146  Penn.  St.  176,  If  he  volunteers  to  pay  legacies,  with 

and  cases  cited.  full  knowledge  of  outstanding  debts,  he 

^  lb.     Cf.   Evans  v.   Foster,  80  Wis.  may  have  to  bear  the  penalty  of  his  own 

509;  §488.     Though  the  land  specifi-  imprudence.     Harkins   v.    Hughes,  60 

cally  devised  may  have  to  be  sold  to  Ala.  316. 

pay  debts,  etc.,  the  surplus,  if  any,  goes  *  i  La.    Ann.    214.     The    executor's 

to  such  devisee.     87  Me.  63.  prudent  course  is  to  take  a  refunding 

3  Orr  V.   Kaines,   2   Ves.    Sen.    194;  bond  from  legatees,  as  against  claims 

Coppin  V.  Coppin,  2   P.  Wms.  296 ;  5  which    may   aftern'ards     be    presented 

Cranch,  C.  C.  658  ;  Wms.  Exrs.   1450.  within  the  time  allowed  by  law ;  unless 

Local  statutes   sometimes  change  this  the  estate  is  ample.     Supra,  %  ^TJ  \  Mc- 

rule.  Glaughlin  v.   McGlaughlin,  43   W.  Va. 

■I  Wms.    Exrs.    1451;  1    Chanc.   Cas.  226;  31  Gratt.  602. 
136;  Davis  V.   Newman,  2   Rob.  (Va.)  ^  Wms.    Exrs.     1451  ;   i    Vern.    162; 
664.    The  executor  should  come  into  the  March  v.  Russell,  3  My.  &  Cr.  31  ;  Da- 
court  "  with  clean  hands,"  if  he  expects  vies  v.  Nicholson,  2   De  G.  &  J.  693  ; 
equity  to  aid  him.     See  77  N.  C.  357.  Buie  v.  Pollock,  55  Miss.  309. 

5  McClure  7'.  Askew,  5  Rich.  Eq.  162. 

40  625 


v5  49I<:7  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

tee  may  be  required  to  refund  only  his  proportionate  share.' 
And  it  would  appear  consistent  with  our  American  probate  prac- 
tice to  cause  unsatisfied  creditors,  where  the  deficiency  was 
occasioned  by  maladministration,  to  exhaust  their  remedies  first 
against  the  executor  or  administrator  and  the  sureties  on  his 
official  bond.^  And  since  creditors  may  compel  legatees  to  re- 
fund, so  the  executor  is  sometimes  substituted  to  their  right  for 
his  own  indemnity.^ 

As  among  legatees,  moreover,  no  one  of  them  shall  be  allowed 
an  unjust  precedence,  because  of  an  executor's  favor  or  misap- 
prehension, where  the  assets  were  not  originally  sufficient,  in 
fact,  to  pay  all  in  full ;  but  in  such  case  equity  will  compel  the 
legatees  thus  overpaid  to  contribute  so  as  to  make  the  whole 
proportionate  abatement  what  it  should  have  been.'* 

§  4gia.    Change   from   Representative    to   other   Capacity. — At 

the  proper  point  an  executor  or  administrator  who  is  also  sole 
beneficiary  for  the  residue,  changes  the  character  under  which 
he  holds  the  fund  and  becomes  residuary  legatee  or  distributees 

'  Gillespie  v.  Alexander,  3  Russ.  130.  equity.     Green  v.  Givan,  33  N.  Y.  343. 

^Pyke  V.  Searcy,  4  Port.  52.     A  de-  Where  specific  legacies  have  not  been 

cree  of  the  court  directing  a  payment  paid,  the  residuary  legatee  may  be  pur- 

w-ithout  security,  will  protect  the  exec-  sued  to  whom  the  executor  has  made 

utor.     154  Penn.  St.  383.     Cf.  §477.  improper  payment.     Buffalo  Loan  Co. 

3  See  83  Va.  539.  z>.  Leonard,  154  N.  V.  141. 

•*  Walcott  V.   Hall,    i    P.  Wms.  495  ;         '  As  to  where  he  is  to  hold  the  fund 

Wms.  Exrs.  1452  ;  Gallego  v.  Attorney  as  trustee  or  guardian,  see  §  247.     As  to 

General,     3     Leigh,    450.      Otherwise,  devolution  of   title    as  legatee  or  dis- 

where  assets,  originally  sufficient,  have  tributee,  see  §  248.     Where  one  is  sole 

been    wasted    by    the    executor.     See  residuary  legatee  or  distributee  and  all 

Wms.  Exrs.  1452  ;  Evans  v.  Fisher,  40  debts  are  paid,  he  may  turn  over  to  him- 

Miss.    644.     Trust     funds,    misapplied  self  any  outstanding  claim  of  the  estate 

and  distributed  by  the  executor  among  and  sue  for  it  in  his  individual  capacity, 

legatees,  may  be  recovered  by  a  bill  in  Ewers  v.  White,  114  Mich.  266. 

626 


CHAP,   v.]    PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE.     §  493 


CHAPTER  V. 

PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE, 

§  492.  Residue  of  Personal  Estate  goes  according  to  Testacy  or 
Intestacy  of  Deceased. —  After  the  payment  of  debts  and  (if  there 
be  a  will)  of  specific  and  general  legacies,  the  final  duty  of  the 
executor  or  administrator  is  to  pay  over  or  deliver  what  residue 
or  surplus  of  the  assets  may  remain  to  the  person  or  persons 
duly  entitled  to  the  same.  In  case  of  testacy,  the  residuary 
legatee  or  legatees,  or,  as  the  case  may  be,  trustees  selected  to 
hold  the  residue  for  the  purposes  contemplated  by  the  will,  are 
the  proper  parties  ;  but,  where  one  died  intestate,  the  residue 
goes  to  the  person  or  persons  designated  by  law  and  the  statute 
of  distributions.  These  two  cases  we  now  proceed  to  consider 
separately. 

§  4g2a.  Debt  o-wing  by  Distributee,  etc.,  to  be  Deducted. — But 
we  may  here  state,  as  preliminary,  that  in  general,  it  is  the  right 
and  duty  of  the  personal  representative  to  retain  from  the  share 
to  which  each  distributee  is  entitled,  whatever  amount  may  be 
due  by  the  latter,  either  as  a  debtor  to  the  estate,  or  by  reason 
of  matters  growing  out  of  the  settlement  of  the  estate.' 

§  493.  I.  As  to  the  Residue  in  case  of  Testacy. — First,  as  to 
the  case  of  testacy.  After  an  executor  has  settled  all  lawful 
debts  and  charges  against  the  estate  which  he  represents,  and 

'See  §208;    Hoffman    v.    Hoffman,  gCh.  D.  673;  23W.  R.  826;  28  W.  R. 

88  Md.  60 ;  Webb  v.  Fuller,  85  Me.  443  ;  914  ;  Cutliff  v.  Boyd,  72  Ga.  302.     And 

Fiscus  t/.  Fiscus,  127  Ind.  283.     As  to  see,  as  to  setting  off  the  representative's 

permitting  an  executor  or  administrator  own  advances,  Taylor  v.  Taylor,  L.  R. 

to  set  off  a  debt  due  to  his  decedent  20  Eq.   155;  Kelly  v.   Davis,  37    Miss, 

against  the  legacy  or  distributive  share  76.     See  further,  37  Ala.  74  ;  2  Sneed, 

payable,  see  also  Courtenay  v.  Williams,  200 ;  Nelson  v.   Murfee,  69   Ala.   598 ; 

3  Hare,  539  ;  Hodgson   v.  Fo.x,  L.  R.  §  486. 

627 


§   494  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

has  paid  or  delivered  all  the  general  and  specific  legacies  ac- 
cording to  the  tenor  of  the  will,  he  should  transfer  whatever 
personal  property  remains  to  the  residuary  legatee  or  legatees 
if  such  there  be.'  And  if  such  legatee  dies  after  the  testator, 
and  pending  a  final  settlement  of  the  estate,  his  personal  repre- 
sentatives will  take  the  residue  in  his  right.-  Subject  to  the 
directions  of  the  will,  and  such  legatee's  convenience,  this  resid- 
uary fund  is  turned  over  in  money  or  other  kinds  of  personalty, 
as  the  proceeds  of  a  prudent  administration. 

§  494-  Right  of  the  Executor  where  there  is  no  Residuary  Leg- 
atee named.  —  F^ormerly  it  was  contended  in  the  English  courts, 
more  out  of  favor  to  the  individual  upon  whom  the  deceased  had 
bestowed  his  confidence  than  upon  any  rational  theory  of  inter- 
pretation, that  if  a  testator  had  named  in  his  will  an  executor, 
but  no  residuary  legatee,  the  executor  should  retain  the  residue 
of  the  personal  estate  for  his  own  benefit,  after  settling  all  debts 
and  charges,  and  paying  whatever  legacies  were  duly  bestowed. 
For,  inasmuch  as  the  personal  estate  had  devolved  upon  the 
executor  in  the  first  instance,  there  the  surplus  legally  remained.^ 
So  unsatisfactory  was  the  doctrine,  however,  that  though  equity 
gave  formal  adhesion  to  this  common-law  rule,  they  made  excep- 
tions wherever  they  might  ;^  and,  in  1830,  Parliament  declared 
explicitly  that,  for  the  future,  unless  the  will  directed  otherwise, 
the  executor  must  be  deemed,  in  all  such  cases,  a  trustee  for  the 
persons  entitled  to  the  estate  under  the  statute  of  distributions.^ 

'  Wms.  Exrs.  1454.  '  Act  11  Geo.  IV.  &  Wm.  IV.  c.  40; 

^  Brown  v.  Farndell,  Carth.  52;  Wms.  Exrs.  1476.  The  established 
Cooper  7'.  Cooper,  L.  R.  7  H.  L.  53.  equity  rule,  previous  to  this  act,  was 
A  residuary  legatee,  under  a  will,  has  a  that,  where  it  may  well  be  presumed 
clear  and  tangible  interest  in  the  resi-  that  the  testator  meant  to  confer  the 
due,  and  the  next  of  kin  stand,  with  re-  office  without  the  beneficial  interest  in 
gard  to  an  intestate  estate,  in  the  same  the  residue,  the  executor  must  l)e  con- 
condition.     Cooper  7).  Cooper,  ib.  sidered  a  trustee  for  the  next  of   kin  of 

'Attorney  General   v.   Hooker,  2  P.  the  testator;  or,  if  there  be  no  known 

Wms.  338;  Urquhart  v.   King,  7  Ves.  kindred,  a  trustee  for  the  crown,     i  Bro. 

288;  Wms.  Exrs.  1474,  1475.  C.  C.  201  ;  Taylorz/.  Haygarth,  14  Sim. 

*  Ib. ;  Langham  r.  Sanford,    17  Ves.  8.     The  effect  of  this statul e appears  to 

435;  Middleton  v.  Spicer,  i   Bro.  C  C.  be  to  put  the  burden  of  proof  on  the 

201  ;  Taylor  v.  Haygarth,  14  Sim.  8.  executor  to  show  that   the  testator  in- 

628 


CHAP,   v.]     PAYMENT  AND    DISTRIBUTION   OF  Till-:   RKSIDIIE.     §   495 

Generally,  if  not  universally,  in  the  American  States,  the  execu- 
tor has  been  considered  a  trustee  for  the  next  of  kin  as  to  all 
residue  in  his  hands  undisposed  of ;  and  American  statutes  a 
hundred  years  old  repudiate  the  notion  that  a  beneficial  interest 
should  vest  in  him  by  virtue  of  his  office." 

The  fact,  that  the  next  of  kin  is  likewise  executor,  does  not, 
of  course,  disentitle  him  from  taking  beneficially  the  residue 
which  otherwise  would  have  vested  in  him.^  But  a  pecuniary 
legatee's  interest  is  not  enlarged  constructively  by  his  appoint- 
ment as  an  executor.^  It  has  been  held  that  a  testator  cannot 
by  negative  words  exclude  any  or  all  of  his  next  of  kin  from 
sharing  beneficially  his  undisposed-of  residue,  but  must  give  it 
expressly  to  some  one  else,  if  he  means  to  cut  off  such  kindred's 
right  to  share. 

Where  executors  applied  to  the  court  to  construe  the  testa- 
tor's will  and  made  distribution  in  accordance  therewith,  in  the 
exercise  of  due  care  and  good  faith,  they  were  protected,  although 
it  turned  out  subsequently  that  the  court's  construction  of  the 
will  was  erroneous.'* 

§  495-  II-  -A-s  to  the  Residue  in  Case  of  Intestacy;  Statutes 
of  Distribution.  —  Secondly,  as  to  payment  or  delivery  of  the 
residue  in  case  of  intestacy.  As  the  law  of  England  anciently 
stood,  the  ordinary,  succeeding  to  the  king's  right,  himself  appro- 
priated the  residue  of  an  intestate's  estate,  as  though  for  pious 
uses,  giving  certain  portions  to  widow  and  children,  if  there  were 

tended    he   should    enjoy   the    residue  Jackson,  6  Mass.  149  ;  Wilson  v.  Wil- 

beneficially.      Juler  v.   Juler,   29  Beav.  son,  3  Binney,  557. 
34.     But  the  statute  is  considered  to         -  Mass.  Stat.  1783,  c.  24,  §  10. 
apply  only  in  cases  where  the  testator         ^  Browne  v.  Cogswell,   5   Allen,  556. 

has  left  next  of  kin ;  and,  accordingly,  See  Reeve's  Trusts,  AV,  L.  R.  4  Ch.  D., 

where  there  is  no  known  next  of  kin,  as  to  a  bequest  to  an  executor,  but  not 

the  executor  will  take  the  residue  as  in  that  character.     Negative  words  will 

against  the  crown,  unless  the  intent  of  not  suffice  to  exclude  any  of  one's  next 

the   testator   to    exclude   his    executor  of  kin  from  sharing  beneficially  in  a  resi- 

affirmatively  appear.     2  Coll.  648.    For  due  undisposed  of.     Clarke  v.  Hilton, 

the  English  decisions  under  this  statute,  L.  R.  2  Eq.  810. 
see  Wms.   Exrs.   1474-1482,  and  cases         *■  Eraser  v.  Page,  82  Ky.  73. 
cited.  An  executor  cannot  be  compelled,  by 

'2  Story   Eq.  Jurisp.  §  1208;  Wms.  summary  process  for  contempt,  to  make 

Exrs.    1474,   and   cases   cited;   Hays  7'.  distribution.     81  Va.  395. 

629 


§  495 


EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 


any.  Later  statutes  compelled  administration  to  be  granted 
to  the  next  relatives  of  the  deceased  ;  but  here  the  immediate 
result  was,  that  the  person  selected  for  the  trust  might  make 
the  office  lucrative  for  himself,  by  enjoying  the  surplus,  to  the 
exclusion  of  other  equal  kindred  to  the  intestate.  For,  as  the 
temporal  courts  finally  decided,  the  ordinary  had  no  power  to 
compel  a  distribution,  notwithstanding  such  authority  had  long 
been  assumed.' 

To  this  unsatisfactory  state  of  the  law  we  owe  the  first  of  our 
formal  statutes  of  distribution,  —  one  of  those  excellent  enact- 
ments, following  the  Restoration,  which  have  placed  English 
jurisprudence  upon  a  sound  modern  establishment.  This  act 
provides  in  detail  for  distributing  justly  and  equally  the  surplus 
oi  all  intestate  estates  amongst  the  wife  and  children,  or  chil- 
dren's children,  if  any  such  be,  or  otherwise  to  the  next  of  kin- 
dred to  the  dead  person  in  equal  degree,  or  legally  representing 
their  stocks,  p7v  s?io  ciiiquc  jurc.'^     By  this  same  statute  the  or- 


'  2  Bl.  Com.  515  ;  Edwards  v.  Free- 
man, 2  P.  Wms.  441  ;  Wms.  Exrs.  1483 ; 
I  Lev.  223.  The  spiritual  courts  had 
required  administrators  to  give  bonds, 
■with  condition  to  distribute;  and  stat- 
ute 2  Hen.  VIII.  c.  5,  expressly  sanc- 
tioned "taking  surety  "  of  the  person  to 
whom  such  office  was  committed.  It 
appears,  too,  to  have  been  the  custom, 
moreover,  to  divide  an  intestate's  per- 
sonal estate  among  his  next  relatives. 
Stat.  21  Hen.  VIII.  c.  5,  §3;  Wms. 
Kxrs.  52g;  supra,  §§  7,  139.  Assign- 
ment before  a  distributee's  right  to  a 
share  accrued,  confers  no  full  right  upon 
the  assignee.     3  Dem.  567. 

^  Stat.  22  &  23  Car.  II.  c.  10.  De- 
tails are  given  in  Wms.  Exns.  1434,  at 
considerable  length.  Admirable  as  is 
the  policy  of  this  statute,  some  English 
jurists  have  considered  it,  to  use  Lord 
Hardwicke's  words,  "  very  incorrectly 
penned."      Stanley  v.   Stanley,    i    Atk. 

457- 

From  the  operation  of  this  act  were 
expressly  excepted  customs  previously 

63 


observed  within  the  city  of  London,  the 
province  of  York,  and  other  places.  The 
custom  of  the  city  of  London,  which  is 
the  remnant  of  the  old  common  law  on 
the  subject  (see  Lord  Macclesfield,  Prec. 
Ch.  596),  distributed  according  to  the 
ancient  doctrine  of  pars  rationabilis. 
This,  in  substance,  divided  the  surplus 
into  three  parts  where  widow  and  chil- 
dren survived  the  intestate;  the  widow 
taking  one-third,  the  children  one-third, 
the  administrator  one-third.  If  only  a 
widow  or  only  children  survived,  such 
widow  or  .such  children  took  one  moiety 
and  the  administrator  the  other.  If 
there  was  neither  widow  nor  child  sur- 
viving, the  administrator  had  the  whole; 
his  portion  being  known  as  the  "  dead 
man's  part  "  or  "  death's  part."  It  was 
this  "  dead  man's  part  "  which  the  or- 
dinary or  administratorformerly  applied, 
or  might  apply,  to  his  own  use,  until  the 
statute  1  Jac.  II.  c.  17,  required  it,  de- 
spite custom,  to  be  .subject  to  the  statute 
of  distributions  ;  a  statute  which  doubt- 
less would  have  passed  much  earlier, 
O 


CHAP,   v.]    PAYMENT  AND   DISTRIBUTION  OF  THE  RESIDUE.     §  496 

dinary  spiritual  court  was  empowered  to  take  bonds,  with  sure- 
ties, from  all  administrators  on  their  appointment,  conditioned 
not  only  to  exhibit  an  inventory,  and  administer  the  estate  well 
and  truly,  but  likewise  to  render  a  just  account  of  one's  admin- 
istration, and  deliver  and  pay  the  residue  found  due  to  such  per- 
son or  persons  as  the  court  should  decree,  pursuant  to  the  terms 
of  this  act.' 

Statutes  are  to  be  found  in  all  of  the  United  States  expressly 
directing  the  distribution  of  an  intestate's  personal,  as  well  as 
the  descent  of  his  real  estate,  and  differing  in  various  details 
from  one  another,  though  based  upon  the  English  statute  of 
Charles  11.^  It  is  likewise  the  American  rule  to  require  account 
and  distribution  by  the  administrator,  under  the  direction  of  the 
probate  court,  and  to  insert  corresponding  conditions  in  the  ad- 
ministration bond.3 

The  persons  among  whom  distribution  should  be  made,  and 
the  method  of  making  distribution,  must  therefore  be  determined 
by  local  statutes,  and  the  procedure  of  the  courts  under  them. 
But  the  rights  and  method  of  distribution,  English  and  Ameri- 
can, deserve  some  further  attention.^ 

§  496.  Surviving  Husband's  Right  to  the  Residue  of  his  De- 
ceased Wife's  Personalty.  —  Under  the  English  statutes  (and  per- 
haps at  common  law),  not  only  is  the  surviving  husband  entitled 

had  not  widow  and  children  (who  had,  interest    only   as    a   curious    historical 

we  must  remember,  the  choice  of  ad-  study,  will  be  found  collated  in  Wms. 

ministrator)  been  treated,  if  surviving,  Exrs.  1 527-1 549. 

with  tolerable  fairness,  while  the  chief  '  See  stat.  ib. ;  Wms.  Exrs.  530,  531, 

hardships   of   the   law   bore   upon  the  1484.     As  to  language  used  in  the  court 

more  remote  kindred.     The  custom  of  of  probate  act,  stat.  20  &  21  Vict.  c.  77, 

London    made     deduction    for     "the  which  substitutes  probate  jurisdiction 

widow's  chamber,"  or  her  apparel  and  for  that  of  the  old  spiritual  courts,  see 

the  furniture  of  her  bedchamber.     Cus-  Wms.  Exrs.  292.     Under  modern  Eng- 

toms  of   York  and  other  places  were  lish  practice,  accordingly,  the  bond  mns 

quite  similar  to  that  of  London.     But  as  conditioned  to  pay  the  residue  to  the 

by  stat.  19  &  20  Vict.  c.  94,  all  these  persons    entitled  under  the  statute  of 

customs  are  abolished  as  to  the  estates  distributions, 

of  persons  dying  on  or  after  January  ist,  ^2  Kent  Com.  426,  and  notes. 

1857.     The  cases  under  this  head,  which  ^  Supf-a,  ^  140. 

in  England  are  becoming  rapidly  for-  ■•  See  Table  of  Consanguinity, 
gotten,  and  afford  to  American  readers 

631 


§   497  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

to  administer  upon  his  wife's  estate  in  preference  to  all  others, 
but,  subject  to  the  payment  of  such  debts  as  bind  him  upon  sur- 
viving her,  he  recovers  her  outstanding  personal  property  to  his 
own  use  and  enjoyment.  His  interest  is  a  peculiar  one,  moulded 
by  the  peculiar  laws  of  coverture  ;  and  he  is  said  to  administer 
for  his  own  benefit  when  he  administers  at  all,  and  to  acquire  a 
title  to  his  wife's  personalty,  fitly  designated  as  a  title  J2irc 
niariti  under  the  statutes  of  distribution.' 

So  greatly,  however,  have  the  ancient  rights  of  husband  and 
wife  been  changed  by  modern  legislation,  both  in  England  and 
the  United  States,  that  the  present  legal  rule  on  this  subject 
cannot  be  stated  with  precision.^ 

§  497-  Surviving  "Wife's  Rights  in  the  Distribution  of  her  De- 
ceased Husband's  Personalty.  —  The  English  statute  of  distribu- 
tions preserves  the  "  widow's  thirds,"  which  the  ancient  common 
law  bestowed  as  \v^x  pars  ratioiiabilis  ;  the  remaining  two-thirds 
going  to  the  children  of  the  intestate  or  their  representatives.^ 
The  statute  further  provides,  as  likewise  did  the  ancient  law, 
that  when  the  husband  dies  intestate,  leaving  a  widow  only,  and 
no  lineal  descendant,  the  widow  shall  have  a  moiety  or  half  of 
his  personal  estate ;  giving  a  husband's  next  of  kin  the  other 
half.     Not  more  than  one-half  can  the  widow  take  by  distribu- 

'  C lough  V.  Bond,  6  Jur.  50;  Schoul.         As  to  curtesy  at  the  common  law,  or 

Hus.  &  Wife,  §408;  2   151.  Com.  515;  the  surviving  husband's  potential  life 

Watt  V.  Watt,  3  Ves.  246.  interest    in   his    wife's   lands,   where  a 

^2  KentiCom.  136;  Barnes  z/.  Under-  child  was  born  of  the  marriage,   and 

wood,   47   N.  Y.  351  ;  Cox  v.  Morrow,  substitutes  for  this   right    under  some 

14  Ark.  603  ;  Nelson  z/.  Goree,  34  Ala.  late  American  statutes,  see  Schoul.  Hus. 

565;  Baldwin  v.  Carter,  17   Conn.  201 ;  &  Wife,  §§417-423;  2  Kent  Com.  134; 

Woodman  v.  Woodman,  54  N.  II.  226;  i  Washb.  Real  Prop.  128. 
Wilson    V.    Breeding,     50    Iowa,   629;         ^Stat.  22  &  23  Car.   II.  c.  10.     The 

Holmes  v.   Holmes,   28  Vt.  765.     See  statute  and  custom  of  London,  taken 

statutes  of  the  several  States  regulating  together,  so  as  to  divide  the  "  death's 

this  subject ;  also  Schoul.  Hus.  &  Wife,  part  "  between  widow  and  children,  pro- 

§§  405-409,  and  cases  cited.     The  stat-  videdmorefavorably  for  the  widow  than 

ute  29  Car.  II.  was  never  in  force  in  the  statute  alone;  which  last,  it  is  ob- 

Illinois ;  and  the  husband  must  distrib-  served,   virtually  bestows  the  "  death's 

ute  according  to  the  local  statute  of  dis-  part  "    upon   the   children    to    increase 

tributions.     Townsend  v.   Radcliffe,  44  their  portion,  exclusive  of  the  widow. 

111.  446.  Wms.  Exrs.  1 530.     Supra,  §  495,  n. 

632 


CHAP,   v.]    PAYMENT  AND  DISTRIBUTION   OF  THE   RESIDUE.     §   498 

tion,  under  any  circumstances  ;  for,  where  there  are  no  next  of 
kin,  the  other  half  goes  to  the  crown.' 

In  this  country  the  statute  of  Charles  II.  is  at  the  basis  of 
our  legislation  regarding  the  estates  of  intestates  ;  but  various 
modifications  are  found  in  the  several  States,  to  the  greater 
favor  of  the  surviving  wife  ;  and  modern  legislation  at  the  pres- 
ent day  is  capricious  in  this  respect,  though  tending  to  equalize 
the  rights  of  surviving  spouses  in  one  another's  property.^ 

§  49^-  Higlits  of  Children  and  Lineal  Descendants  in  Distribu- 
tion. —  The  English  statute  directs  an  equal  distribution  among 
the  children  of  an  intestate,  after  deducting  the  widow's  third  ; 
or,  if  there  be  no  widow  or  husband,  the  entire  residue  is  por- 
tioned equally  among  them.  Where  the  intestate  has  left  only 
one  child,  the  statute  by  implication  provides  for  such  child, 
giving  him  the  entire  two-thirds,  or,  in  case  of  no  surviving 
widow  or  husband,  the  entire  residue.^ 

If  any  child  was  dead  at  the  time  of  the  intestate  parent's 
death,  and  yet  left  a  child  or  children  of  his  own  then  surviving, 
such  child  or  children  will  take  their  own  parent's  share  in  the 
intestate's  personalty,  by  what  is  termed  the  "  right  of  legal 
representation." 

This  right  of  representation  extends  to  lineal  descendants  in 
the  remotest  degree,  the  descendants  of  a  deceased  heir,  as  a 
class,  being  substituted  to  the  share  their  own  parent  would  have 
taken  if  living  ;  ■♦  though  exclusive  of  such  parent's  widow.  But 
representation  applies  only  where  one  or  more  of  them  of  a 
nearer  degree  to  the  intestate  survived  him,  while  such  as  did 
not,  left  lineal  descendants  instead,  the  right  to  take  per  stirpes 
thus  equalizing  a  distribution  among  those  of  the  nearest  degree  ; 
for,  were  all  the  children  of  the  intestate  dead,  and  only  grandchil- 
dren left,  the  grandchildren  would  be,  in  fact,  the  next  of  kin  sur- 

'2  Bl.  Com.   515,  516;  2  Kent  Com.  barred  by  antenuptial   settlement,  etc. 

427;  Schoul.  Hus.  &  Wife,  §  427  ;  Cave  Schoul.  Hus.  &  Wife,  §363.     Divorce 

V.  Roberts,  8  Sim.  214.  excludes  such  rights.     Schoul.  Hus.  & 

=  See    Schoul.  Hus.    &    Wife,    §427,  \Vife,  §§  558,  559. 

and  appendix;  the  latest  local  codes  ;  2  ^  Wms.  Exrs.  1495,   MQ?  ;  Carth.  52. 

Kent  Com.  nth  ed.  427,  428.  "Price  v.   Strange,  6   Madd.    161  ;    3 

A  surviving  spouse's  rights  may  be  Bro.  C.  C.  226;  Wms.  Exrs.  1496. 

6\\ 


§  49<^  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

viving,  and,  as  equal  members,  take  per  capita  ;  while,  as  between 
grandchildren  and  the  surviving  children  of  a  deceased  grand- 
child, supposing  such  a  case  to  have  occurred,  the  right  of  repre- 
sentation as  per  stirpes,  would  once  more  operate."  American 
statutes,  while  recognizing  these  general  rules,  specify  how  far 
the  right  of  representation  shall  apply  ;  a  principle  which  might 
well  avail  among  collateral  kindred,  and  in  landed  inheritance, 
but  whose  extent,  under  the  act  22  &  23  Car.  II.,  is  not  pre- 
cisely determined.'' 

Children  of  the  half  blood  are  entitled  to  a  share  equally  with 
those  of  the  whole  blood ;  a  rule  applicable  where  the  parent 
married  more  than  once,  and  had  offspring  by  the  different  mar- 
riages.^ And  this  rule  extends  generally  to  kindred  of  the  half 
blood  in  the  same  degree.  A  posthumous  child,  too,  or  one 
born  after  the  death  of  the  parent,  inherits,  whether  of  the 
whole  or  half  blood,  in  the  same  manner  as  if  born  during  the 
lifetime  of  the  parent  and  surviving  him.''  On  such  points, 
statutes  of  distribution  in  our  American  States  are  sometimes 
found  explicit  ;  providing,  also,  for  other  cases,  where  the  com- 
mon law  was  either  harsh  or  uncertain,  as  in  the  instance  of 
illegitimate  children. s  So  highly  favored  are  the  equal  rights 
of  children  or  lineal  descendants  in  this  country,  that  provisions 
may  be  found  in  our  various  codes,  restraining  the  parental 
right,  or,  at  all  events,  presuming  strongly  against  the  parental 
intention  to  deprive  any  one  of  them  of  the  equal  benefits  of 
his  will.^ 

'  2  Bl.  Com.  517  ;  Bac.  Abr.  tit.  Exors.  2    Vern.     124.     Children    by   different 

I.  3;  Wms.  Exrs.  1497,  1498.  fathers  or  by  different  mothers  may  be 

^ Semhle,  that,  as  long  as  there  are  brothers  or  sisters  of  the  "half  blood," 

lineal  descendants,  the  division  must  be  in  the  sense  of  that  word,  as  it  appears. 

per  stirpes.     See  Ross's  Trusts,  L.  R.  "■  z  Kent  Com.  424;  Edwards  z/.  Free- 

13  Eq.  286.     Inheritance  or  succession  man,  2  P.  Wms.  446 ;  Wms.  Exrs.  1497. 

"  by  right  of  representation  "  takes  place  And  see  Mass.  Pub.  Stats,  c.  127,  §  22. 

when   the   descendants   of   a  deceased  ^  Mass.    Pub.    Stats,    c.    125,    §§3-5. 

heir  take  the  same  share  or  right  in  the  The  rights  and  disabilities  of  illegitimate 

estate   of   another    person    that    their  children,  as  well  as  the  status  of  legiti- 

parent    would    have    taken   if    living,  macy,  are  subjects  considered  at  lengtli 

Mas.s.  Pub.  Stats,  c.  125,  §6.     And  see  in  Schoul.  Dom.  Relations,   Part  111  . 

North's  Estate,  Re,  48  Conn.  583.  cs.  i,  6. 

3 1  Mod.  209;  Carth.  51;  Wms.  Exrs.  ""Mass.   Pub.   Stats,   c.    127,   §21;   1 

1496;  2  Kent  Com.  424  ;  Crook  t'.  Watt,  Kent  Com.  42114  Kent  Com.  471. 

^>34 


CHAP,  v.]     PAYMENT  AND   DISTRIBUTION   OF  THE   RESIDUK.     §    50O 

§  499-  Advancements  to  Children  ;  How  reckoned  in  Distribu- 
tion.—  By  the  English  statute  of  distributions,  portions  arc 
taken  into  account ;  and,  if  the  father,  during  his  Hfetime,  makes 
an  advancement  .to  any  of  his  children,  towards  their  distribu- 
tive share,  the  rule  is  to  deduct  this  in  making  distribution.' 

§  500-  Advancements  to  Children;  American  Rule.  —  To  di.s- 
criminate  carefully  under  such  ma.xims  must  be  difficult  ;  and, 
in  this  country,  the  rule  of  advancements  does  not  appear  to  be 
so  strict,  more  stress  being  usually  laid  upon  mutual  intention 
at  the  date  of  the  transaction,  than  upon  the  equity  of  distribut- 
ing to  all  children  alike.  It  is  true  that  advancements  are  in 
some  States  reckoned  by  a  legal  inference  similar  to  that  which 
the  English  cases  uphold  ;  nor  is  it  unfrequently  held  that  a 
gift,  either  of  land  or  money,  which  is  made  to  a  child  or  heir, 
by  a  person  who  afterwards  dies  intestate,  shall  be  presumed  an 
advancement ;  ^  as  where,  for  instance,  the  pro\ision  was  calcu- 


■  Stat.  22  &  23  Car.  II.  c.  10,  §  5; 
Wm.s.  Exrs.  1485,  1498;  Edwards  v. 
Freeman,  2  P.  Wms.  435 ;  2  Bl.  Com. 
517.  And  see  Dallmeyer  i*?^,  (1896)  i  Ch. 
372.  As  to  the  deceased  father,  the  stat- 
ute takes  away  nothing  which  has  been 
once  received  by  a  child ;  but  only  his 
distributive  share  can  be  affected  by 
such  computation,  unless  he  chooses  to 
relinquish  more ;  and  the  rule  of  hotch- 
pot applies  only  to  cases  of  actual  and 
complete  intestacy.  Walton  v.  Walton, 
14  Ves.  324  ;  Edwards  v.  Freeman,  2  P. 
Wms.  443.  Bringing  an  advancement 
into  hotchpot  is  intended  for  the  benefit- 
of  children,  and  not  the  widow ;  but,  as 
among  children,  the  rule  extends  to 
those  who  succeed  to  a  deceased  child's 
share  by  the  right  of  representation. 
Kircudbright  v.  Kircudbright,  8  Ves. 
51  ;  Proud  v.  Turner,  2  P.  Wms.  560. 
But  grandchildren  who  take  per  capita 
need  not  thus  account  for  advancements 
to  their  respective  parents  deceased. 
Skinner  z/.  Wynne,  2   Jones  (N.  C.)  41. 

Lands  received  by  settlement  upon  a 


younger  child,  and  charges  upon  such 
land,  have  been  included  within  the 
English  statute  under  the  rule  of  ad- 
vancements. 2  P.  Wms.  441  ;  Wms. 
Exrs.  1500,  1 50 1.  And  so  have  provi- 
sions by  marriage  settlement  and  pecu- 
niary portions.  Wms.  Exrs.  1502; 
Edwards  v.  Freeman,  2  P.  Wms.  440. 
Where  a  father  settles  upon  his  son  on 
the  latter's  marriage,  all  the  limitations 
to  the  wife  and  children  of  such  son 
should  be  considered  part  of  the  ad- 
vancement. Weyland  v.  Weyland,  2 
Atk.  635.  As  to  what  shall  constitute 
an  advancement  of  the  latter  descrip- 
tion, the  acts  of  the  father  appear  to 
have  been  often  construed  in  England 
with  less  reference  to  actual  intention 
of  the  parties  than  the  requirement  of 
equal  justice.  See,  e.g.,  Wms.  Exrs. 
1 502-1 505;  I  Atk.  403;  8  Ves.  51  ;  2 
P.  Wms.  435;  31  Beav.  583;  Boyd  v. 
Boyd,  L.  R.  4  Eq.  305  ;  Bennett  v.  Ben- 
nett, L.  R.  10  Ch.  D.  474. 

'  See  Meadows  v.  Meadows,  11   Ire. 
I,.    148;    2    Story    Eq.    Juris.    §  1202; 


635 


§  500 


EXECUTORS    AND    ADMINISTRATORS. 


[part  V. 


lated  to  aid  directly  and  advance  the  child  when  starting  in  life. 
But,  generally,  all  such  presumptions  may  be  readily  overcome 
by  proof  of  actual  intent ; '  while,  in  some  States,  the  statutes 
of  distribution,  unlike  the  English,  permit  nothing  to  be  reckoned 
as  an  advancement  to  a  child  by  the  father,  unless  proved  to 
have  been  so  intended,  and  chargeable  on  the  child's  share  by 
certain  evidence  prescribed.^     Where  at   all  events  it   clearly 


Parks  z/.  Parks,  19  Md.  323  ;  Grattan  v 
Grattan,  18  111.  167;  Creed  z'.  Lancas 
ter  Bank,  i  Ohio  St.  i  ;  Wms.  Exrs 
1502,  71.  by  Perkins;  4  Kent  Com.  419 
Hollister  v.  Attmore,  5  Jones  Eq.  373 
P'ellows  V.  Little,  46  N.  H.  27  ;  85  Tenn 
430- 

'  Smith  V.  Smith,  21  Ala.  761  ;  Parks 
V.  Parks,  19  Md.  373;  Phillips  v.  Chap- 
pel,   16  Geo.   16;  Bay  v.  Cook,  31    111. 

336. 

^  Mass.  Gen.  Stats,  c.  91,  §  6  ^/  scq.  ; 
Hartwell  z/.  Rice,  i  Gray,  587  ;  22  Pick. 
508;  4  Kent  Com.  418;  Porter  z'.  Por- 
ter, 51  Me.  376;  Adams  v.  Adams,  22 
Vt.  50 ;  Johnson  v.  Belden,  20  Conn. 
322 ;  Mowrey  v.  Smith,  5  R.  I.  255. 
See  also  Schoul.  Dom.  Rel.  §  273  ;  Van- 
zant  V.  Davies,  6  Ohio  St.  52 ;  Vaden 
v.  Hance,  i  Head,  300;  119  111.  151, 
170. 

Hence  it  is  laid  down  that  whether  a 
certain  provision  made  by  the  deceased 
during  his  lifetime  be  a  gift  or  an  ad- 
vancement is  a  question  of  intention ; 
but  that,  if  it  was  originally  intended 
by  both  parent  and  child  as  a  gift,  it 
cannot  be  subsequently  treated  by  the 
father  as  an  advancement,  without  at 
least  the  child's  knowledge  or  consent. 
Lawson's  Appeal,  23  Penn.  St.  85 ; 
Sherwood  v.  Smith,  23  Conn.  516.  On 
the  other  hand,  bonds  or  promissory 
notes  held  by  an  intestate  parent  against 
his  child,  or  the  transfer  of  money  upon 
an  account  stated,  when  expressed  in 
the  usual  form,  justify  rather  the  pre- 
sumption that  there  was  a  loan  and  not 
a  gift  or  advancement  intended.  Va- 
den V.   Mance,   i    Head,  300;  Bruce?'. 


Griscom,  16  N.  V.  Supr.  280;  Batton 
V.  Allen,  5  N.  J.  Eq.  99 ;  42  N.  J.  Eq. 
I5>  633;  70  Ala.  484;  West  v.  Bolton, 
23  Geo.  531.  All  such  presumptions 
may  be  rebutted ;  and,  to  the  facts  and 
circumstances  attending  the  transaction, 
and,  likewise,  to  declarations  of  the  one 
as  part  of  the  res  gestae,  and  admissions 
by  the  other,  much  weight  is  attached. 
One's  advancement  may  he  changed 
into  a  gift  to  the  child ;  and  one  may, 
by  his  will,  reduce  expressly  his  surviv- 
ing child's  legacy  out  of  consideration 
for  special  favors  rendered ;  but  the 
conversion  of  an  absolute  gift  into  an 
advancement  or  debt,  so  as  to  affect  a 
child's  right  of  distribution,  in  case  of 
intestacy,  is  not  to  be  accomplished  by 
the  mere  acts  and  declarations  of  the 
parent  subsequent  to  the  transaction, 
and  apart  from  the  child's  own  assent 
to  the  change.  Green  v.  Howell,  6  W. 
&  S.  203;  Mitchell  v.  Mitchell,  8  Ala. 
414;  Manning  v.  Manning,  12  Rich. 
Eq.  410;  Lawson's  Appeal,  23  Penn. 
St.  85  ;  Miller's  Appeal,  31  Penn.  St. 
337;  iiolnd.  444;  Sherwood  z'.  Smith, 
23  Conn.  516.  Evidence  of  the  mutual 
intention,  in  short,  is  regarded  with 
great  favor  where  the  deceased  parent 
has  not  given  express  directions  by  his 
will ;  nor  are  entries  and  memoranda 
by  the  parent  conclusive  as  to  either 
the  amount  or  the  character  of  the  trans- 
fer to  his  child.  5  Watts,  9,  80 ;  Wms. 
Exrs.  1502,  Perkins's  «.  The  advance- 
ment being  made  and  accepted,  the 
incidents  to  an  advancenu-nt  follow. 
Nesmith  v.  Dinsmore,  17  .\.  II.  515. 
As  under  the  English   rule,  there  must 


636 


CHAJ\    v.]     PAYMENT  AND   DISTRIBUTION  OI"  TIIK   RESlDUi:.     §    5OO 

appears  that  the  father  intended  a  gift,  the  gift  will  not  be  treated 
as  an  advancement.' 

The  rule  of  bringing  one's  advancement,  in  real  or  personal 
estate,  into  hutcJipot,  if  the  child  so  desire,  with  the  whole  estate 
of  the  intestate,  real  and  personal,  so  as  to  take  his  just  propor- 
tion of  the  estate,  prevails  in  several  of  the  United  States.- 
Hut  this  privilege  of  election  to  the  child  is  by  no  means  univer- 
sally conceded.^  The  child  who  thus  elects  does  not  thereby 
relinquish  his  title  to  the  advancement,  but  takes  such  a  course 
to  ascertain  whether  his  share  actually  exceeds  or  falls  short  of 
an  equal  share.'*  In  this  case,  and,  in  general,  wherever  the 
value  of  an  advancement  is  to  be  ascertained,  the  value  of  the 
property  at  the  time  of  the  advancement  governs  in  the  distri- 
bution, and  interest  should  not  be  reckoned. ^ 


be  a  complete  act  of  the  parent  during 
his  life  divesting  himself  of  the  prop- 
erty to  constitute  an  advancement. 
Crosby  v.  Covington,  24  Miss.  619. 
Old  promissory  notes  long  outlawed 
may  be  presumed  to  have  been  paid 
rather  than  held  as  an  advancement. 
23  S.  C.  456.  A  contemporary  writing 
or  the  peculiar  tenor  of  a  promissory 
note  or  other  security  may  show  that 
an  advancement  was  intended.  Kirby's 
Appeal,  109  Penn.  St.  41  ;  90  Mo.  460. 
Or  it  may  show  the  reverse.  16  Lea, 
453.  Circumstantial  evidence  bears  on 
the  issue.  58  Mich.  152.  An  advance 
by  the  father  may  consist  in  paying  his 
child's  debts.  85  Tenn.  430.  With 
the  assent  of  the  child  a  father  may 
change  his  advancement  into  a  gift. 
71  Ga.  544. 

As  to  impounding  a  child's  share  to 
pay  a  judgment  recovered  on  w-hat  he 
owed  the  estate  by  way  of  advance,  see 
65  Md.  69,  153. 

It  is  a  general  rule  in  the  United 
States  (confirmed  by  statute  in  some 
States),  that  while  an  advancement  must 
be  taken  by  a  child  towards  his  share, 
as  regards  a  distribution  of  the  estate, 
so  as  to  abate  or  extinguish  his  distribu- 


tive rights,  no  child  shall  be  required  to 
refund  any  part  of  the  sum  advanced 
to  him,  although  it  should  exceed  his 
share.  Black  v.  Whitall,  9  N.  J.  Ecp 
572 ;  Mass.  Gen.  Stats,  c.  91,  §  6 ;  Gush- 
ing V.  Gushing,  7  Bush,  259. 

'  Morgan,  Ke,  104  N.  Y.  74. 

'  Wms.  Exrs.  7th  Eng.  ed.  1499; 
Jackson  v.  Jackson,  28  Miss.  674 ;  2 
Kent  Com.  421  ;  Barnes  v.  Hazleton, 
50  111.  429;  Knight  V.  Oliver,  12  Gratt. 
33.  Children  with  advancements,  re- 
fusing to  come  into  hotchpot,  shall  be 
disregarded  in  the  distribution.  St. 
Vrain's  Estate,  i  Mo.  App.  294. 

2  See  2  Kent  Com.  419,  421.  Stat- 
utes are  to  be  found  in  various  States 
on  this  subject.  lb.  Chancellor  Kent 
does  not  appear  to  favor  this  special 
right  of  election,  nor  to  consider  the 
privilege  of  any  consequence.     lb. 

''  Jackson  v.  Jackson,  28  Miss.  674. 

5  Jenkins  v.  Mitchell,  4  Jones  Eq. 
207  •  Wms.  Exrs.  1498,  n.  by  Perkins. 
For  the  New  York  rule,  see  Beebe  v. 
Estabrook,  t8  N.  Y.  Supr.  523.  The 
rule  is  sometimes  defined  by  local  stat- 
utes ;  as  in  Massachusetts,  where  the 
just  proviso  is  found,  in  substance,  that, 
if  the  value  of  the  advancement  was 


637 


§   50I  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

§  501.  Genereil  Distribution  among  the  Next  of  Kin. —  In  de- 
fault of  surviving  husband,  widow,  children,  or  lineal  issue,  the 
general  rights  of  next  of  kin  must  be  considered.  Under  the 
English  and  American  statutes  of  distributions,  next  of  kin 
more  distant  than  children  and  their  representatives,  may, 
as  we  have  seen,  be  entitled  to  share  with  the  widow,  or,  in 
some  of  our  States,  with  the  surviving  husband  ;  but  the  stat- 
ute rule  is,  that  if  there  be  no  wife,  surviving  husband,  or  lineal 
issue,  then  all  the  estate  must  be  distributed  among  the  next 
of  kin  of  equal  degree.  The  rules  of  consanguinity  already 
stated  in  connection  with  the  right  of  taking  out  administration 
should  here  be  applied  once  more." 

Both  English  and  American  statutes  regard  the  father  with 
much  favor  under  such  circumstances  ;  and  under  the  statute 
22  &  23  Car.  II.  c.  10,  if  the  intestate  thus  dying  left  a  father, 
the  father  was  entitled  to  the  whole  of  the  personal  estate  to 
the  exclusion  of  all  others  ;  ^  the  mother  coming  next  in  order, 
but  even  thus,  under  the  amended  act,  having  to  share  with 
brothers  and  sisters  of  the  deceased,  if  there  were  such.^  Amer- 
ican policy  tending,  however,  in  later  times,  to  place  parents 
upon  a  more  equal  footing  as  to  their  own  children,  we  find 
that  some  States  now  require  distribution  to  father  and  mother 
in  equal  shares,  where  both  survive ;  or,  at  all  events,  prefer, 
in  degree,  either  surviving  parent — the  other  being  dead — to 
brothers  and  sisters  of  the  deceased.^  It  has  been  decided, 
under  the  English  statute,  that,  in  default  of  parents,  the  broth- 
ers and  sisters  of  the  deceased  are  to  be  preferred  to  a  grand- 
parent, notwithstanding  all,  in  legal  strictness,  are  of  the  same 

precisely  expressed  contemporaneously  ^  Wms.  Exrs.  1 506  ;  Blackborough  z/. 

between  the  parties,  this  value  shall  be  Davis,  i  P.  Wms.  51. 

reckoned.     Mass.  Gen.  Stats,  c.  91,  §  3  ;  ^  As  to   the   mother's    sharing   with 

Osgood  V.  Breed,   17   Mass.  356;  Nel-  brothers  and  sisters,  see  stat.  i,  Jac.  II. 

son  V.  Wyan,  21  Mo.  347.  c.  17  ;  Wms.  Exrs.  1 506-1 508,  and  cases 

Concerning   the    sale    of    expectant  cited.     The    English    statutes   on    this 

estates  by  children,  see  Schoul.   l)om.  point  are  carelessly  drawn  ;  but  various 

Rel.  §  272  ;   I  Story  Eq.  Juris.  §§  336-  American  codes  express  the  idea  very 

339.  cleady. 

^  Supra,  §    Id.     And   see  Table  in  ^  Mass.     Pub.     Stats,    cs.    125,    135; 

Appendix.  Oliver  v.  Vance,  34  Ark.  564. 

638 


CHAP,  v.]    PAYMENT  AND  DISTRIBUTION  OI    THE  RESIDUE.     §   502 

degree  ; '  and  this  preference,  which  is  founded  in  natural  rea- 
son, American  codes  have  expressly  conceded,-  though  grand- 
parents are  admitted  to  outrank  uncles  and  aunts,  under  the 
English  reckoning.^ 

If  the  intestate  leaves  no  husband,  widow,  or  issue  ;  and  no 
father,  mother,  brother  nor  sister  ;  his  personal  estate  goes  to 
his  next  of  kin  in  equal  degree ;  and,  as  to  these,  our  codes  of 
distribution  rarely  specify  more  particularly  the  parties  entitled. 
But,  it  is  observable,  that  in  various  American  States  it  is  dis- 
tinctly prescribed  that  the  degrees  of  kindred  shall  be  computed 
according  to  the  rules  of  the  civil  law.'* 

Half-blood  kindred,  in  the  same  degree,  are  to  inherit  equally 
with  those  of  the  whole  blood,  as  our  local  statutes  not  unfre- 
quently  declare,  and  the  English  decisions  concede.^ 

§  502.  The  same  Subject.  —  The  English  statute  of  distribu- 
tions appears  to  have  so  limited  the  right  of  representation  among 
collaterals  as  to  exclude  it,  where  the  next  of  kin  are  more  re- 
motely related  to  the  intestate  than  brothers  and  sisters  ;  and 
hence,  where  the  intestate  leaves  surviving  an  uncle  or  aunt  and 
the  son  of  another  uncle  or  aunt  deceased,  the  latter  can  take 
nothing ;  hence,  too,  surviving  nephews  and  nieces  become  dis- 
tributees, regardless  of  the  child  of  a  deceased  nephew  or  niece.^ 
A  corresponding  limitation  may  be  found,  more  or  less  precisely 
expressed,  in  American  codes  ;  ^  which,  likewise,  incline  to  treat 
lineal  kindred,  and  brothers  and  sisters,  more  favorably  than 
more  remote  collateral  kindred  in  respect  of  representation. 

'2   Freem.    95;    3    Atk.    762,    763;  -t  See  Mass.   Gen.   Stats,  c.  91,  §  5; 

Ambl.  191.  Sweezey  v.  Willis,  i  Bradf.  Sur.  (N.  Y.) 

^  See  local  codes.  495  ;  table  in  Appendi.\. 

^  Wms.  Exrs.  1509,  15 10.     The  Mas-  '  The  English  cases  extend  this  doc- 

sachusetts  statute   (Gen.    Stats,  c.  93)  trine  to  posthumous  brothers  and  sisters 

provides,  by  way  of  qualifying  the  dis-  of  the  half  blood.     Watts  v.   Crooke, 

tribution    among    the    next    of    kin  in  Show.   P.   C.  108 ;  Burnet    v.  Mann,   i 

equal  degree,  that  when  there  are  two  Yes.  Sen.  156;   Wms.  Exrs.  151 1.     And 

or  more  collateral  kindred  in  equal  de-  see  Mass.  Gen.  Stats,  c.  91,  §  5. 

gree,    but    claiming    through    different  *>  2  Yern.  168  ;  Powers  v.  Littlewood, 

ancestors,  those  who  claim  through  the  i  P.  Wms.  595  ;  Wms.  E.xrs.  i486,  151 2. 

nearest  ancestor  shall  be  preferred  to  ^2  Kent  Com.  425 ;  Parker  v.  Nims. 

those  claiming  through  an  ancestor  who  2  N.  H.  460  ;  Porter  e/.  Askew,  11   (ji!l 

is  more  remote.  &    J.    346;    Bigelow    v.    Morong,    103 

639 


§    504  EXECUTORS    AND    AHMIMSTRATORS.  [I'ART  V. 

It  should  always  be  borne  in  mind,  that  as  husband  and  wife 
are  not  legally  next  of  kin  to  one  another,  so  distribution,  and 
those  other  rights  which  pertain  to  kinship,  cannot  be  predicated 
of  a  mere  connection  by  marriage  ;  on  the  contrary,  there  must 
be  common  blood  in  the  intestate  and  those  claiming  to  be  en- 
titled to  share  as  kindred.  And  among  kindred  are  three  classes : 
those  in  the  ascending  line,  those  in  the  descending,  and  those 
in  the  collateral.' 

§  503-  Distribution  -where  there  is  no  Known  Husband,  Widow^ 
or  Next  of  Kin.  —  Where  the  deceased  intestate  has  left  no  hus- 
band, widow,  or  next  of  kin,  the  residue,  after  paying  all  debts, 
belongs,  by  English  law,  to  the  crown,  as  nltiviiis  Jiaercs ;  ^  and, 
under  our  American  codes,  the  residue  reverts  or  escheats  in 
like  manner  to  the  State.^  But,  while  American  policy  appears 
to  regard  the  State  ofificial  who  may  thus  receive  the  balance  as 
a  sort  of  trustee  for  the  benefit  of  those  who  may  have  lawful 
claims  thereon,"*  and  in  final  default  of  such  claimants,  for  the 
public,  it  is  held  in  England  that  the  crown  shall  take  the  res- 
idue personally  and  beneficially.  Indeed,  English  sovereigns 
have  been  accustomed  to  grant  such  property  to  their  own  favor- 
ites by  letters  patent  or  otherwise,  reserving,  perhaps,  one-tenth 
part  for  the  royal  chest ;  ^  though  the  long  pendency  of  admin- 
istration proceedings  in  chancery,  under  a  bill  in  equity,  may  af- 
ford to  absentees  an  ample  opportunity  to  appear  and  assert 
their  rights  before  such  final  distribution  is  awarded, 

§  504.  Time  and  Method  of  Distribution.  —  The  due  Computa- 
tion of  that  balance  which  serves  as  the  basis  of  a  rightful  dis- 

Mass.    287;   Hatch    7\    Hatch,   21    Vt.         ^  ^gg  Mass.  Gen.  Stats,  c.  95,  §§  12- 

450;  Adee  v.  Campbell,  79  N.    Y.  52.  15;   Parker  v.  Kuckens,  7   Allen,  509; 

And  see  further,  as  to  children  of  de-  Fuhrer  v.   State,   55   Ind.   150;   Leland 

ceased  brother,  etc.,    Conant   v.    Kent,  v.  Kingsbury,  24  Pick.  315. 
130  Mass.  178.  *  Mass.  Gen.  Stats,  c.  95,  §§  12-15. 

'  Bouv.    Diet.     "Kindred."     See,    as         ^  Wms.   Exrs.  433,   434,  1515;  2  Bl. 

between  brother  and  the  grandchild  of  Com.  505,  506.     The  e.st at es  of  bastards, 

a  deceased  brother,  Suckley,  Matter  of,  as  of  persons  having  no  kindred,  passed 

18  N.  Y.  vSupr.  344.     And  see  table, /^j/.  in  Hke  manner  to  the  sovereign,  by  the 

^  Megit    V.     Johnson,     Dougl.    548 ;  common  law. 
Taylor  v.  Haygarth,  14  Sim.  8. 

640 


CHAP,    v.]     PAYMENT  AND  DISTRIBUTION  OF  THE  RESIDUE,     §    504 

tribution  is  necessarily  postponed  to  the  lawful  adjustment  of 
debts  due  from  the  estate  to  its  creditors ;  and  hence  the  post- 
ponement of  distribution.  The  English  statute  of  distributions 
directs  that  no  distribution  shall  be  made  till  after  a  year  from 
the  intestate's  death,  and  that  distributees  shall  give  bond  to 
indemnify  the  administrator  in  ratable  proportion  if  lawful  debts 
afterwards  appear.'  American  statutes  proceed  upon  the  same 
general  theory  ;  usually  permitting,  however,  that  the  estate 
shall  continue  unsettled  until  the  statute  period  for  presenting 
claims  (whether  longer  or  shorter,  and  whether  rightfully  com- 
puted from  the  intestate's  death  or  from  the  date  of  the  admin- 
istrator's appointment)  shall  have  expired.^ 

Upon  a  final  settlement  of  the  administration  accounts,  in 
American  practice,  distribution,  if  sought,  should  be  granted.^ 
Distribution,  whether  total  or  partial,  may  be  applied  for  by  the 
representative  or  by  distributees,  as  local  statutes  frequently 
provide,  after  a  certain  period  reasonably  long  for  ascertaining 
the  true  surplus,  and  before  a  final  settlement  of  the  estate ;  a 
refunding  bond  being  part  of  this  proceeding,  where  the  admin- 
istrator continues  responsible  for  claims  upon  the  estate.-*  But 
it  is  usual  to  postpone  such  decree  until  the  time  has  fully 
elapsed  for  settling  the  debts.  A  decree  for  partial  distribution 
is  provided  in  the  practice  of  some  States  ;  such  decree  being 
conclusive  only  as  to  the  funds  then  distributable,  and  assets 
being  reserved  for  further  liabilities  connected  with  the  admin- 
istration.5 

Where  the  persons  entitled  are  well  known  to  the  represen- 
tative, both  as  to  legal  right  and  identity,  payment  is  usually 
made  without  the  formality  of  procuring  a  decree  of  distribution 

'  Wms.  Exrs.  i486;  stat.  22  &  23  "  LiHy  -,  Stahl,  5  Ind.  447;  Black- 
Car.  II.  c.  10,  §  8.  erby  ^'.  Holton,  5  Dana,  520  ;  Richmond 

^  A  court  has  no  jurisdiction  to  order  v.  Delay,  34  Miss.  83 ;  Johnston  v.  Fort, 
a  final  distribution  during  the  time  that  30  Ala.  78 ;  Edgar  v.  Shields,  i  Grant 
creditors  may  present  claims  under  stat-  (Pa.)  361 ;  Hays  v.  Matlock,  27  Ind.  49. 
ute.  151  Mass.  595.  Cf.  107  N.  C.  168.  And  see  Part  VII.,  c.  \, post. 
It  is  devastavit  for  the  representative  to  '  Kline's  Appeal,  86  Penn.  St.  363  ; 
distribute  before  the  debts  are  paid.  Harrison  t'.  Meadors,  41  Ala.  274;  Cur- 
Lewis  V.  Mason,  84  Va.  731.  tis  v.  Brooks,  71  111.  125. 

3  Pritchett's  Estate,  Re,   52   Cal.  94 ; 
Part  VII.,  c.  \,post. 

41  641 


§   504^  EXECUTORS    AND    ADMINISTRATORS,  [PART  V. 

from  the  court.'  But  where  questions  affecting  such  rights  are 
pending,  distribution  should  neither  be  made  nor  decreed. 

§  504^.    The  same  Subject ;   Decree  of  Distribution.  —  A  decree 

of  distribution  should  specify  the  distributees  ;  also  the  personal 
representative  of  any  deceased  distributee  as  the  person  to  re- 
ceive the  share.  An  order  which  in  effect  requires  payment 
to  the  next  of  kin  is  erroneous  and  insufficient  for  protection.^ 
But  an  error  in  a  decree  of  partial  distribution  may  be  cured  on 
the  next  distribution.  ^  An  ex  parte  decree  of  distribution, 
which  does  not  follow  the  statute,  fails  to  protect.''  A  decree 
is  sometimes  opened  and  amended  upon  a  suitable  state  of 
facts.s  An  order  of  distribution  obtained  by  fraud  may  be  set 
aside,  so  long  as  rights  are  not  confirmed  by  limitations.'' 

The  errors  or  inequalities  of  a  partial  distribution  may  be 
rectified  on  a  subsequent  or  final  distribution. ^  And  so  too, 
should  the  representative's  proper  claims  upon  the  fund,  and  all 
other  equities  be  duly  provided  for,  before  a  final  division.** 

'  See  Part  VII.,  c.  \,post.     A  decree  ton,  2   B.  Monr.  393;  Fuhrer  v.  State, 

of  distribution  in  a  final  settlement  is  55   Ind.   150.     But,  if  there  be  known 

inconclusive  on  a  minor  for  whom  no  kindred,  a  public  administrator  should 

guardian  ad  litem  was  appointed.     Con-  distribute     among     them.     Parker    v. 

will  V.  Conwill,  61    Miss.  202.     Money  Kuckens,  7  Allen,  509;  56  Vt.  187. 

is  sometimes  paid  into  court  for  distri-  ^  Grant  v.  Bodwell,  78  Me.  460.     The 

bution  on  the  settlement  of  the  estate,  local  statute  should  be  iollowed.     No- 

93  Ind.  173.     But  the  practice  in  some  tice,  as  to  form  and  sufficiency,  is  within 

States  is  for  the  decree  to  issue  to  the  the  court's  discretion.     170  Mass.  295. 

administrator,  who  procures  the  receipts  '  Dickinson's  Appeal,  54  Conn.  224. 

of  all  the  distributees  named,  and  then  The  court  in  this  State  is  not  precluded 

returns  the  full  document  to  be  filed  at  from  acting  unless  the  parties  interested 

the   probate    registry.     Where    distrib-  file  a  solemn  document  of  division.     lb. 

utees  are  known  and  their  shares  undis-  ■*  Shriver  v.  State,  65  Md.  278. 

puted  the  representative  may  pay  them  See  as  to  the  framing  of  a  decree 

and  credit  the  payments  in  his  final  ac-  where  the  decedent  had  depo.sits  in  a 

count,  which,  when  duly  allowed,  settles  savings  bank  in  trust  for  various  par- 

the  estate  properly  enough.     166  Mass.  ties.     4  Dem.  24. 

306.  '  4  Dem.  30. 

As  to  the  public  administrator's  final  *  Leavens's  Estate,  65  Wis.  440. 

deposit  of  unclaimed  balance,  see  Mass.  '  Yetter's  Estate,  160  Penn.  St.  506. 

Gen.  Stats,  c.  95  ;  Leland  v.  Kingsbury,  *  See  141  N.  Y.  21. 
24  Pick.  315;  Commonwealth  v.  Blan- 

642 


CHAP,   v.]     PAYMENT  AND  DISTRIBUTION  OF  THP:   KF.SIDUK.     §    506 

§  505-  Distribution  where  Real  Estate  has  been  sold  to  pay 
Debts.  —  Distribution  applies,  in  general,  to  personalty  alone  ; 
real  estate  of  the  decedent  descending  to  his  heirs.  The  sur- 
plus of  the  proceeds  of  a  sale  of  realty,  after  payment  of  debts, 
may  be  distributed  among  the  heirs  or  those  claiming  under 
them.' 


§  506.  Whether  Distribution  may  be  of  Specific  Chattels  not 
reduced  to  Cash.  —  In  order  to  distribute  strictly  under  a  decree 
of  distribution,  the  reduction  of  the  surplus  to  cash  would  seem 
to  be  necessary.  But  such  a  course  must  sometimes  be  highly 
disadvantageous,  in  these  times,  especially  where  the  estate  is 
a  large  one ;  and  it  is  preferable  wherever  the  distributees  can 
be  brought  into  accord,  to  make  a  division  specifically  or  in 
kind,  save  so  far  as  a  sale  may  have  been  necessary  for  the 
security  and  benefit  of  the  estate  in  course  of  administration.^ 
Under  all  circumstances,  however,  distributees  should  be  ecjually 
dealt  with,  and  upon  a  just  valuation  of  the  prope'rty,  and  the 
administrator  should  stand  impartial  as  among  them.^     A  fair 


'  Sears  v.  Mack,  2  Bradf.  (N.  Y.) 
394 ;  Part  VI.,  post. 

2  Evans  v.  Inglehart,  6  Gill  &  J.  171  ; 
Hester  v.  Hester,  3  Ired.  Eq.  9  ;  Reed's 
Estate,  82  Penn.  St.  428.  Local  stat- 
utes sometimes  provide  for  a  specific 
distribution  of  personal  property  in  cer- 
tain cases.  Rose  v.  O'Brien,  50  Me. 
r88.  If  shares  of  specific  property  are 
not  exactly  equal,  the  balances  may  be 
made  up  in  money.  Williams  v.  Holmes, 
9  Md.  281.  Where  those  interested  in 
the  estate  divide  among  themselves  the 
effects  of  an  intestate,  the  administrator 
has  usually  no  cause  of  complaint. 
Weaver  v.  Roth,  105  Penn.  St.  408. 
Local  codes  are  found  on  this  point ; 
but  not  so  as  to  authorize  distribution 
in  kind,  of  choses  in  action  or  money 
rights,  some  of  which  are  collectible 
and  others  are  doubtful  or  desperate. 
115  111.  83.  As  to  compromising  on 
such  money  rights,  see  71  Ala.  258. 

^  If,  on  final  settlement  of  the  admin- 


istrator's accounts,  the  assets  are  partly 
gold  and  partly  currency,  each  distribu- 
tee should  have  his  fair  share  of  each 
kind.  Lowry  z/.  Newsom,  51  Ala.  570. 
See  Tilsen  v.  Haine,  27  La.  Ann.  228. 
And,  in  general,  distributees  should  be 
equally  dealt  with.  Lowry  v.  Newsom, 
51  Ala.  570. 

At  the  expiration  of  a  specified  time, 
the  distributee  may  bring  an  action  for 
his  share  against  the  administrator  un- 
der the  local  act.  10  B.  Mon.  62.  But 
cf.  Thornton  v.  Glover,  25  Miss.  132. 
Distributees  are  thus  entitled  to  distri- 
bution upon  tendering  a  refunding  bond. 
24  Miss.  150.  As  a  general  rule,  a  dis- 
tributee has  the  right  to  compel  a  distri- 
bution at  any  time  after  the  lapse  of  the 
period  limited  for  presenting  and  suing 
upon  claims  ;  but  the  rights  of  creditors 
should  be  protected  according  to  the 
exigency.  23  Miss.  134.  An  adminis- 
trator should  not  distribute  nor  suffer  a 
decree   of    distribution   to   be   entered. 


643 


§  507 


EXECUTORS    AND    ADMINISTRATORS. 


[part 


transfer  of  assets,  corporeal  or  incorporeal,  which  a  beneficiary 
of  the  estate  knowingly  accei)ts  as  the  equivalent  of  cash  is  to 
be  regarded  as  an  actual  payment  in  cash.' 


§  507.  Death  of  Distributee  pending  Distribution. —  Descent 
is  cast,  and  rights  of  distribution  are  vested,  upon  the  death  of 
the  intestate  ancestor  or  person  whose  estate  is  to  be  adminis- 
tered ;  ^  hence  the  subsequent  death  of  a  distributee  transfers 
his  interest  to  his  personal  representative. 


regardless  of  claims  of  creditors  brought 
to  his  notice  which  might  reduce  the 
surplus.  Clayton  v.  Wardwell,  2  Bradf. 
I.  If  residuary  parties  are  willing  to 
take  their  share  in  personal  assets,  the 
representative  should  not  convert  into 
cash.     82  Penn.  St.  42S. 

Distributees  have,  of  course,  no  right 
to  sue  for  and  recover  claims  due  their 
intestate's  estate  pending  a  settlement, 
for  this  is  a  fundamental  right  of  the 
administrator.  Kaminer  v.  Hope,  9 
S.  C.  253.  And  until  distribution  of  an 
estate  is  made,  the  legal  title  to  the 
assets  remains  in  the  representative, 
irrespective  of  a  distributee's  debts,  no 
matter  where  the  possession  may  be. 
Hence,  shares  of  the  distributees  can- 
not be  reached  by  garnishment  pending 
the  administration.  Selman  v.  Milliken, 
28  Ga.  366.  But,  after  lapse  of  the 
time  for  presenting  claims  and  a  final 
settlement  by  the  administrator,  includ- 
ing the  paj-ment  of  debts,  and  distribu- 
tion, the  property  divided  among  the 
distributees,  or  held  by  them  in  com- 
mon, may  become  liable  for  their  re- 
spective debts,  or  be  made  available  for 
their  own  benefit.  As  to  their  rights, 
after  a  final  settlement  by  the  adminis- 
trator, to  sue  upon  an  uncollected  chose, 
see  Humphreys  z^.  Keith,  n  Kan.  108; 
Pratt  V.  Pratt,  22  Minn.  148.  And  as 
to  liability  of  the  property  corre.spond- 
ingly  for  their  debts,  see  Brashear  v. 
William-s,  10  Ala.  630.  See  also,  as  to 
the  effect  of  a  bona  fide  payment  made 


to  the  next  of  kin  before  administration, 
Johnson  v.  Longmire,  39  Ala.  143;  su- 
pra, §  120.  In  fact,  the  legal  title  to 
the  personal  property  of  a  decedent 
vests  in  the  administrator  specially,  and 
for  the  special  purposes  of  collecting 
and  preserving  the  assets,  paying  the 
debts,  and  distributing  the  surplus.  As 
to  the  legal  title  of  distributees,  where 
there  is  no  administration,  and  no  neces- 
sity for  one,  see  Andrews  v.  Brumfield, 
32  Miss.  107. 

After  an  estate  has  been  distributed, 
the  distributees  cannot  treat  the  settle- 
ment as  illegal  or  void,  on  account  of 
an  irregularity  in  the  proceedings,  with- 
out restoring,  or  offering  to  restore, 
what  they  have  received  under  the 
settlement.  McLeod  v.  Johnson,  28 
Miss.  374. 

'  Hawthorne  v.  Beckwith,  89  Va. 
786;  Richardson  Re,  (1896)  i  Ch.  512. 

^  If,  therefore,  the  surviving  widow 
of  an  intestate  dies  before  the  personal 
estate  has  been  distributed,  her  share 
or  surplus  will  devolve  upon  her  own 
personal  representatives.  Wms.  Exrs. 
1526  ;  Carth.  51,  52  ;  McConico  v.  Can- 
non, 25  Ala.  462  ;  Foster  v.  Fifield,  20 
Pick.  67 ;  Moore  v.  Gordon,  24  Iowa, 
158;  Kingsbury  v.  Scovill,  26  Conn. 
349 ;  Puckett  v.  James,  2  Humph.  565. 
Cf.  Maxwell  ?'.  Craft,  32  Miss.  307. 
And  so  correspondingly  with  a  surviv- 
ing husband  or  one  next  of  kin  to  a 
deceased  person  entitled  in  like  manner. 
As   to    the   husband's    death,   pending 


644 


CHAP,   v.]     PAYMENT  AND  DISTRIBUTION   OF  TIIK  RKSIDUK.     §    508 


§  50^-  Distribution  ;  Refunding  Bond,  Contribution,  etc.  —  A 
refunding  bond  should  be  taken  by  the  administrator,  for  his 
own  protection,  from  each  distributee,  wherever  he  makes  volun- 
tary distribution,  before  creditors '  claims  are  barred,  since  other- 
wise he  cannot  require  contribution  if  compelled  to  pay  such 
claims,  according  to  the  rule  of  some  States  ; '  a  rule  announced, 
however,  not  without  admitted  exceptions.''  Where  the  ad- 
ministrator has  sufficient  funds  for  his  own  reimbursement,  he 
cannot  recover  for  making  an  excessive  payment  to  a  distributee ; 
and  his  negligence  or  default  may  debar  him  in  other  cases  from 
procuring  reimbursement  ;  though  creditors  might,  on  their  own 
behalf,  if  not  themselves  at  fault,  pursue  assets  into  the  hands 
of  the  distributees.^  If  the  representative  fails  to  take  a  re- 
funding bond  from  the  next  of  kin  where  he  pays  before  creditors 
are  debarred  from  pursuing  their  claims,  he  makes  himself  per- 
sonally liable  to  the  creditors,  at  all  events,  for  the  amount  he 


settlement  of  his  wife's  estate,  a  cir- 
cuitous course  was  formerly  taken  in 
English  practice.  See  Schoul.  Hus.  & 
Wife,  §  415;  Roosevelt  v.  Ellithorpe, 
10  Paige,  415;  Fielder  v.  Hanger,  3 
Hagg.  Ec.  770.     And  see  §  483. 

Where  any  of  the  distributees  of  the 
estate  have  died,  their  legal  representa- 
tives should  be  brought  in  before  a  final 
settlement  of  the  estate  is  allowed  in 
court.  Hall  v.  Andrews,  17  Ala.  40. 
The  case  resembles  that  of  a  residuary 
legatee  who  dies  before  his  surplus  is 
ascertained ;  the  distributees  of  an  in- 
testate estate  being,  as  it  were,  residuary 
legatees  under  a  will  drawn  up  by  the 
legislature  for  general  emergencies. 
See  Cooper  v.  Cooper,  L.  R.  7  H.  L.  53. 

Where  one  of  the  distributees  died 
before  settlement  and  the  administrator 
paid  part  of  his  share  for  the  support 
of  such  distributee's  family,  he  was  al- 
lowed a  credit  in  equity,  where  it  was 
shown  that  creditors  and  others  in  in- 
terest did  not  suffer  in  consequence. 
95  N.  C.  265.  Advances  made  by  the 
administrator  to  the  distributee  will  be 
so  treated  in  case  of  such  distributee's 


death  before  the  time  of  distribution, 
and  although  he  gave  his  note  for  such 
advance.  Lyle  v.  Williams,  65  Wis. 
231.     See,  further,  63  Cal.  520. 

'  Moore  v.  Lesueur,  38  Ala.  237 ; 
Musser  v.  Oliver,  21  Penn.  St.  362; 
supra,  §  506  ;  43  W.  Va.  226. 

^Alexander  v.  Fisher,  18  Ala.  374 ; 
1 1  Ala.  264.  Such  refunding  bonds  are 
usually  taken  with  reference  to  claims 
of  creditors,  and  not  by  implication,  so 
as  to  recover  for  an  excess  paid  by  way 
of  distribution.  State  v.  McAleer,  5 
Ired.  L.  632  ;  Robinson  v.  Chairman,  8 
Humph.  374  ;  Simpson's  Appeal,  109 
Penn.  St.  383.  That  the  court  has  dis- 
cretion in  requiring  a  refunding  bond, 
see  98  Cal.  654. 

^  Singleton  v.  Moore,  Rice  (S.  C.) 
Ch.  I  ID;  Saeger  v.  Wilson,  4  Watts  & 
S.  501  ;  Donnell  v.  Cook,  63  N.  C.  227  ; 
Wms.  Exis.  883,  1450,  1452,  and  Per- 
kins's note.  And  see  supra  as  to  pay- 
ments by  executors  (§  491),  which  indi- 
cates that  the  equity  rule  is  more  liberal 
than  that  of  the  common  law  in  such 


645 


§    ^oSa  EXECUTORS    AND    ADMINISTRATORS.  [PART  V. 

has  distributed,  and  honest  error  will  not  shield  him.'  Local 
codes  provide  that  the  administrator  need  not  distribute  until 
the  time  has  elapsed  for  ascertaining  what  the  true  balance 
above  the  debts  shall  be,  and  earlier  distribution  should  not  be 
expected  by  kindred  unless  they  give  the  refunding  bond. 

Generally  speaking,  no  partial  distribution  will  afford  protec- 
tion to  an  executor  or  administrator  unless  he  has  the  court's 
sanction.'' 

§  5o8<^r.  Suit  against  Executor  or  Administrator  for  Neglect  to 
Distribute,  etc.  —  After  sufficient  time  has  elapsed  and  the  sole 
duty  of  an  executor  is  to  pay  the  legacies,  or  of  an  administra- 
tor to  make  distribution,  and  he  fails  to  do  so,  he  is  sometimes 
made  liable  to  civil  action  for  his  breach  of  duty  without  wait- 
ing for  an  order  of  distribution  by  the  probate  court ;  but  no 
such  suit  can  be  maintained  unless  the  facts  furnish  full  justi- 
fication.^ 

'Jones's  Appeal,  99  Penn.   St.  124;         ^  Clarke    v.    Sinks,     144     Mo.    448. 

13    Phila.  350.     But   as  to  acting  with  Hence  the  safer  course  is  to  apply  to 

due  regard  to  the  supposed   rights  of  the     probate     court.      Cf.     appendix; 

creditors  in  such  a  case  see  Graves  ?-.  Schaub  t.  Griffin,  84  Md.  557  ;  79  Md. 

Spoon,  18  S.  C.  386.  357. 

=  88  Md.  60,  62. 

646 


PART  VI. 

GENERAL  POWERS,  DUTIES,  AND  LIABILITIES  OF 
EXECUTORS  AND  ADMINISTRATORS  AS  TO  REAL 
ESTATE. 


CHAPTER  I. 


REPRESENTATIVE  S  TITLE  AND  AUTHORITY  IN  GENERAL. 

§  5^9-  No  Inherent  Authority  or  Title  as  to  Decedent's  Real 
Estate.  —  As  we  have  already  seen,  the  real  estate  of  a  decedent 
descends  at  once  to  his  heirs  or  devisees,  and  the  personal  rep- 
resentative has  no  inherent  authority  or  title  thereto  under  his 
appointment.'  An  administrator,  more  especially,  takes  neither 
estate,  title,  nor  interest  in  the  realty  of  his  intestate.-  Nor  has 
an  executor  authority  over  real  estate,  unless  the  testator  ex- 
pressly confers  such  power  by  his  will ;  ^  and,  even  though  thus 
empowered,  whether  to  sell  or  dispose  of  the  decedent's  land,  or 
to  lease  it,  or  to  mortgage  it,  or  to  invest,  re-invest,  or  change 
investments  of  real  estate,  such  power  is  confined  to  the  methods 
and  purposes  therein  expressed.'*     If  he  has  an  interest  of  his 

'  Supra,  §§  212-214,  and  cases  cited;  title  thereto  of  the  deceased,  save  for 

Wms.  Exrs.  650.     As  to  what  is  real  the  benefit  of  creditors  and  payment  of 

estate,  and  not  personalty,  in  the  case  debts.     Gladson  v.   Whitney,  9   Iowa, 

of  manure,  hop-poles,  etc.,  see  Fay  v.  267  ;  Crocker  v.   Smith,    32    Me.  244  ; 

Muzzey,  13  Gray,  53  ;  Bishop  f.  Bishop,  Spears   Eq.   399.     He  cannot   sue   for 

II  N.  Y.  123.  rents,  income  and  profits  of  land  where 

-  U.  S.  Dig.  1st  series.  Executors  and  there  are  no  debts  to  be  paid.     108  Ala. 

Administrators,     1278;    supra,    §212;  105. 

Drinkwater  v.  Drinkwater,  4  Mass.  354  ;         ^  Wms.  Exrs.  650 ;  Gregg  v.  Currier, 

Stearns  v.   Stearns,  i    Pick.  157;  Wal-  36   N.    H.  200.     And  see  Place,  Re,  i 

bridge  v.   Day,   31    111.  379;  Vance   v.  Redf.  276. 

Fisher,  10  Humph.  211  ;  Gregg  v.  Cur-         ■•  i  Sugd.  Powers,  xiZ  ct  seq.,  6th  ed. ; 

rier,  36   N.  H.  200.     An  administrator  James  v.  Bee.sly,  4  Redf.   (N.   Y.)  236; 

has  nothing  to  do   with  real  estate,  or  Wms.  Exrs.  650,  654, 944,  951,  notes  by 

647 


§  509 


EXECUTORS    AND    ADMINISTRATORS. 


[part  VI. 


own  in  such   land,  his  own   deed  can  convey  no  more  than  his 
own  interest.' 

Accordingly,  an  executor  or  administrator  has  no  inherent 
authority  to  make  leases  of  the  real  estate  belonging  to  his  de- 
cedent's estate.-  Nor  to  grant  an  easement  or  right  of  way 
therein.^  Nor  to  bring  ejectment/  or  sue  for  trespass,^  where 
the  right  originates  after  the  decedent's  death.  He  has  no  in- 
herent power  to  sell  the  land  :  and  his  conveyance,  invalid  for 
want  of  power  in  him  to  make  it,  appears  to  leave  the  title  in 
the  heirs  or  devisees,^  while  he  cannot  be  charged  with  its  value 
officially  as  assets  of  the  estate.^  He  cannot  charge  the  de- 
cedent's real  estate  by  his  building  contracts.*^  He  cannot  re- 
cover possession  of  the  decedent's  land  by  a  suit  at  law.^  Nor 
are  the  proceeds  of  a  sale  of  such  land,  made  by  order  of  a  court 
having  no  competent  jurisdiction,  assets  in  his  hands. '°  Nor 
should  he  invest  in  land  nor  apply  personal  assets  to  repairs  and 
improvements  of  the  decedent's  real  estate,  even  though  his 
decedent  had  agreed  to  make  them."      Nor  should  he  make  out- 


Perkins  ;  Hauck  v.  Stauffer,  28  Penn. 
St.  235  ;  Thompson  v.  Schenck,  16  Ind. 
194;  Brown  v.  Kelsey,  2  Cush.  243; 
Hawley  v.  James,  16  Wend.  61. 

'  Fields  V.  Bush,  94  Ga.  664. 

^Taylor  Landl.  &  Ten.  §  133;  Bac- 
Abr.  Leases,  I.  7  ;  2  W.  Bl.  692 ;  Bank 
V.  Dudley,  2  Pet.  492 ;  4  Bush,  27 ;  Lee 
V.  Lee,  74  N.  C.  70.  Otherwise,  how- 
ever, as  to  dealing  with  leases  granted 
to  his  decedent,  which  are  chattels  real. 
Sup7-a,  §  353.  But  such  a  lease  by  an 
executor  or  administrator,  though  good 
at  law,  is  voidable  in  equity,  unless 
shown  to  be  in  the  course  of  adminis- 
tration, and  hence  the  concurrence  of 
legatees  or  distributees  may  often  be 
desirable.  Statutes  sometimes  define 
the  right.  See  Taylor  Landl.  &  Ten. 
134;  3  East,  120;  8  Sim.  217. 

^  Hankins  v.  Kimball,  57  Ind.  42. 

*  Wms.  Exrs.  632,  792;  2  Root,  438. 
Cf.  23  Fla.  90. 

'  Aubuchon  v.  Lory,  23  Mo.  99. 


^  King  V.  Whiton,  15  Wis.  684; 
Hankins  v.  Kimball,  57  Ind.  42 ;  Thomp- 
son V.  Gaillard,  3  Rich,  418  ;  Fay  v.  Fay, 
I  Cush.  105;  65  Conn.  161. 

^  But,  as  to  holding  the  representative 
and  his  sureties  liable  for  misappropria- 
tion in  case  he  assumes  control,  see 
Dix  V.  Morris,  66  Mo.  514. 

*  54  Kans.  770. 

'  Drinkwater  v.  Drinkwater,  4  Mass. 

354- 

'°  Pettit  V.  Pettit,  32  Ala.  288. 

"  Cobb  V.  Muzzey,  13  Gray,  57.  See 
I  Bailey  Ch.  23 ;  2  Hill  Ch.  215  ;  Clark 
V.  Bettelheim,  144  Mo.  258.  An  admin- 
istrator who  invests  assets  in  land  and 
takes  the  deed  to  himself,  though  liable, 
perhaps,  to  distributees  in  proceedings 
for  devastavit,  or  so  as  to  treat  the  land 
as  assets,  may  nevertheless  confer  a  legal 
title  by  transfer  free  of  their  claims 
upon  the  land.  Richardson  v.  Mc- 
Lemore,  60  Miss.  315.     See  §  383. 


648 


CHAP.   I.]  TITLE,    ETC.,    TO    REAL    ESTATE.  §    5^0 

lay  to  Strengthen   the  title.'     Nor  can  he  mortgage  the  dece- 
dent's lands.-     But  local  codes  may  vary  these  rules.^ 

Even  admitting  that  the  personal  representative  may  institute 
proceedings  for  setting  aside  a  conveyance  of  land,  which  the 
decedent  made  in  fraud  of  his  creditors,  this  is  for  the  benefit 
of  creditors  only ;  as  for  heirs,  they  must  institute  proceedings 
in  their  own  interest. ■♦  Except  by  attacking  the  decedent's  own 
sale  during  his  lifetime  as  in  fraud  of  creditors,  and  bringing 
due  proceedings,  he  cannot  contract  or  sell,  even  for  paying 
debts,  land  in  which  the  decedent  had  no  title  when  he  died.* 
And  of  so  little  bearing  is  the  fiduciary  character  of  an  adminis- 
trator usually  upon  the  lands  of  his  decedent,  that  he  has  been 
permitted  to  purchase  at  any  such  sale  of  real  estate ;  except  a 
sale  conducted  by  himself  as  administrator,  where,  for  instance, 
the  personalty  was  insufficient  to  pay  debts.^  On  the  other  hand, 
an  administrator's  purchase,  whether  by  himself  or  another,  at 
his  own  sale,  is  voidable  at  the  election  of  the  heirs  or  devisees. ? 
And  where  the  fiduciary  is  charged  with  the  sale  of  lands  to  pay 
debts,  he  ought  not  to  purchase  such  lands  for  himself  on  an 
execution  sale  against  the  decedent.^ 

§510.  Rule  where  Representative  collects  Rents,  manages,  etc. 
—  If  the  representative  takes  possession  of  the  decedent's  real 
estate,  and  collects  rents,  he  is  generally  understood  to  hold 
the  money  in  trust  for  the  devisees  or  heirs  ;  and  to  such 
parties  he  should  account  justly  for  his  management,  according 
to  their  respective  interests.^     Authority  may  be  conferred  and 

*  Brackett  v.  Tillotson,  4  N.  H.  208.  *  Richards    v.    Sweetland,    6    Cush. 

Where  the  administrator  is  guardian  of  324, /cr  Metcalf,  J.     See  also  Sherman 

the  heir,  his  management  of  real  estate  7'.  Dodge,  28  Vt.  26 ;  Ford  v.  Exempt 

is  on  the  guardianship    account.     Fo-  Fire  Co.,  50  Cal.  299;  §§  220,  252. 

teaux  V.  Lepage,  6  Iowa,  123.  '  121  N.  C.  190.     See  §  213. 

^   Black   V.    Dressell,    20    Kan.   153;  *"  Dillinger  z'.  Kelly,  84  Mo.  561. 

Smith  V.  Hutchinson,  108  111.  662;   162  '  And  this  even  though  the  probate 

111.   232.     Nor  rescind   executory  con-  court  confirmed  the  sale.     McMillan  v. 

tract  for  purchase  of  land.     Cotham  z'.  Rushing,  80  Ala.  402.    See  next  chapter; 

Britt,  10  Heisk.  469.     And  see  151  N.  142  N.  Y.  484;  §  358. 

Y.  204.  ^  Marshall  v.  Carson,  38  N.  J.  Eq.  250, 

^  See  c.   2,  post.     See  statute  as  to  and  cases  cited, 

making  reasonable  repairs,  I  ID  Cal.  494.  "^  Supra,    §    213,    and    cases    cited; 

649 


§  5IO 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 


revoked  by  heirs  or  devisees  for  this  purpose,'  and  the  rep- 
resentative who  collects  without  their  authority  is  liable  to  them.^ 
Under  the  authority  conferred  by  a  will,  again,  the  executor 
may,  of  course,  manage  his  testator's  real  estate  ;  and,  if  the  will 
orders  a  special  disposition  of  rents,  issues,  and  profits,  he  should 
comply  with  its  directions.^  In  some  American  States,  as  we 
have  seen,  liberal  provision  is  made  for  the  management  of  a 
decedent's  real  estate  by  his  personal  representative,  during  the 
settlement  of  the  estate  ;  ^  which  course  may  often  be  convenient, 
even  though  the  personal  assets  be  ample  for  the  claims  pre- 
sented. 

But  the  representative,  in  order  to  justify  himself  in  thus 
managing  the  decedent's  real  estate,  should  bring  himself  within 
the  provisions  of  the  statute,  or  the  terms  of  the  will  under 
which  he  acts,  or  show  consent  of  the  parties  interested  ;  which 
consent  may  be  presumed  from  their  conduct. ^      He  must  also 


Taylor  Landl.  &  Ten.  §  390;  Palmer  ?•. 
Palmer,  13  Gray,  328 ;  Kimball  v.  Sum- 
ner, 62  Me.  309;  173  111.  368.  Such 
matters,  including  taxes  assessed  on  the 
land  since  the  owner's  death,  insurance, 
repairs,  and  improvements,  do  not  be- 
long properly  to  the  accounts  of  ad- 
ministration. Lucy  V.  Lucy,  55  N.  H. 
9;  Kimball  v.  Sumner,  62  Me.  305; 
§512/^. 

^  Supra,  §  212;  Griswold  v.  Chand- 
ler, 5  N.  H.  492. 

^  Even  though  he  uses  the  money  as 
assets  to  pay  debts  of  the  estate.  Con- 
ger V.  At  wood,  28  Ohio  St.  134. 

^  Jones's  Appeal,  3  Grant,  250. 

*  U.  S.  Digest,  1st  series.  Executors 
and  Administrators,  1272,  1278;  15 
Cal.  259 ;  Kline  v.  Moulton,  1 1  Mich. 
370 ;  McClead  v.  Davis,  83  Ind.  263 ; 
supra,  §  213  and  cases  cited;  Flood  v. 
Pilgrim,  32  Wis.  377.  And  as  to  work- 
ing plantations,  in  various  Southern 
States  there  is  similar  legislation.  40 
Miss.  71 1,  760  ;  Henderson  v.  .Simmons, 
33  Ala.  291  ;  51  Ga.  647  ;  Johnson  v. 
Parnell,  60  Ga.  66i.     So  as  to  a  vine- 


yard, 118  Cal.  462.  By  virtue  of  such 
local  legislation  in  the  United  States, 
the  administrator  contrary  to  general 
law  (see  §  509)  may  lease  real  property 
belonging  to  the  estate  during  the  period 
of  administration.     66  Cal.  476. 

5  Billingslea  v.  Young,  33  Miss.  95. 
Special  exception  is  sometimes  made 
in  favor  of  the  representative's  authority, 
where  there  is  no  heir  or  devisee  pres- 
ent to  take  possession.  Hendrix  v. 
Hendrix,  65  Ind.  329.  As  to  collection 
of  rents  by  a  special  or  temporary  ad- 
ministrator, see  §§  134,  135,  414. 

An  executor  has  no  right,  under  a 
mere  power  to  sell  contained  in  the 
will,  to  collect  and  apply  rents  for 
administration  against  the  wishes  of  the 
residuary  legatee.  He  can  only  pur- 
sue the  terms  of  his  power.  Watt's 
Estate,  168  Penn.  St.  431.  And  see 
168  111.  155.  Nor  is  an  imperfect 
power  available.     loi  N.  C.  218. 

Power  to  mortgage  is  sometimes 
given  expre.ssly  by  wiH.  See  Ames  v. 
Holdesbaum,  44  Fed.  224. 


650 


CHAP.   I.]  TITLE,    ETC.,    TO    REAL    ESTATE.  §   5  I  I 

use  due  diligence  in  all  such  management ; '  and  the  same  gen- 
eral rule  as  to  honor  and  diligence  applies  as  in  the  case  of  per- 
sonalty.^ 

§  5^1-  Sale  of  Real  Estate  to  pay  Debts,  Legacies,  etc. —  In 
the  English  practice,  a  power  to  sell  lands,  given  to  the  exec- 
utor under  a  will,  is  fully  sustained.  And,  notwithstanding 
doubts  formerly  entertained,  the  English  chancery  has  gone  so 
far,  in  cases  decided  during  the  latter  half  of  this  century,  as 
to  imply  a  power  of  sale  in  executors  from  a  charge  of  debts, 
although  the  estate  was  devised  to  others.^  That  rule  is  made 
clear  by  statute  22  &  23  Vict,  c,  35.  But,  so  far  is  this  from 
being  regarded  as  an  inherent  right  in  the  representative,  that 
an  administrator  is  recently  held  to  have  no  such  power  to  sell 
a  decedent's  real  estate  for  payment  of  debts,  either  under  the 
general  doctrines  of  chancery  or  under  the  statute.'*  Modern 
English  legislation,  nevertheless,  renders  the  lands  of  a  deceased 
person,  not  charged  with  his  debts,  liable  as  assets  for  payment 
of  the  same,  under  the  administration  of  courts  of  equity  ;  not 
by  way  of  specifically  charging  the  real  assets,  but  so  as  to 
make  the  heirs  or  devisees  personally  liable  to  the  extent  of 
their  respective  interests. 5  The  general  principle  is,  that  cred- 
itors of  a  decedent  can  have  no  recourse  to  his  real  estate  for 
satisfaction,  unless  the  personalty  proves  insufficient. 

In  this  country,  the  sale  of  lands  to  pay  debts  of  the  decedent 
whose  personalty  is  found  deficient,  is  regulated  quite  extensively 
by  statutes,  in  the  nature  of  a  probate  license  to  sell.^  With 
the  real  estate,  or  its  title,  it  is  admitted  that  the  personal  rep- 
resentative has  nothing  to  do,  by  virtue  of  his  office,  unless  the 

"  Hall's  Estate,  70  Vt.  458.  an  administrator  with  will  annexed  has 

^  96  Cal.  522  ;   1 1 1  N.  C.  297  ;  §§  314,  this  power.     lb. 
315,  382.  5  See  statutes  i   Wm.  IV.  c.  47,  and 

'  Robinson  v.  Lowater,  5   De  G.  M.  3  &  4    Wm.  IV.  c.   104,    cited    Wms. 

&  G.  272;  21  Beav.  337  ;  37  Beav.  553.  Exrs.  1688-1692;  i  Mac.  &  G.  456;  22 

In  Sugden  Powers,  14th  Eng.  ed.  662,  Beav.    21 ;    Richardson    v.    Horton,    7 

note,  this  new  rule  is  regarded  unfavor-  Beav.    112;    Dyson   He,   (1896)   2   Ch. 

ably  by  the  author  as  introducing  con-  720.     And  see  Wms.  Exrs.  1688-1692, 

siderable  difficulty  in  titles.     And  see  as  to  the   proper   procedure  in  equity 

Lewin  Trusts,  340.  under  this  act. 

*  Clay,  He,   29  W.   R.   5.     Not   even         ''  See  next  chapter. 

651 


§512  EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 

personal  assets  prove  insufficient  for  the  purposes  of  his  trust ; 
except  under  the  special  qualifications  already  set  forth,  by  local 
statute  or  otherwise." 

Sales  of  land  in  conformity  with  a  will,  in  order  to  provide 
legacies,  where  there  is  a  deficiency  in  personal  assets,  are,  how- 
ever, permitted  both  in  English  and  American  chancery  ;  the 
presumption  being  that  a  testator  intends  the  legacies  given  by 
his  will  to  be  a  charge  on  his  residuary  real  as  well  as  his  per- 
sonal estate.-  In  general,  an  executor  who  sells  or  conveys 
land  under  an  appropriate  power  does  not  make  himself  person- 
ally liable  for  failure  of  the  title. ^ 

They  who  purchase  land  of  a  decedent  from  his  heirs  or  lega- 
tees, before  the  full  administration  and  settlement  of  the  estate 
take  the  incumbrance  of  a  possible  sale  for  payment  of  debts 
and  the  expenses  of  administration,  unless  otherwise  secured.'* 

§  5  I  2.  Ezoneratiou  of  Real  Estate  by  the  Personal ;  Marshalling 
Assets ;  Incumbrance,  etc.  —  The  exoneration  of  real  estate  by 
the  personal  is  an  important  doctrine  of  equity  jurisprudence  in 
administering  estates  ;  the  rule  being  in  full  conformity  with 
our  general  policy,  that  wherever  the  intention  of  a  testator 
does  not  clearly  conflict  with  such  an  interpretation,  real  estate 
shall  be  applied  to  debts,  legacies,  and  charges,  only  so  far  as 
personal  assets,  the  primary  fund,  prove  insufficient,  notwith- 
standing mere  directions  in  the  will  to  sell  or  mortgage  for  such 
purposes.5      Marshalling  the  assets  in  favor  of   creditors  and 

'  See  supra,  §  213;  5  Whart.  228,  wine  v.  Convine,  24  N.  J.  Eq.  579;  31 
350.  Any  sui-plus  arising  from  such  a  N.  J.Eq.  427.  The  right  apart  from  stat- 
sale  though  commonly  distributable  as  ute  is  denied  in  4  Del.  Ch.  9.  See  Mass. 
personalty,  should  be  considered  as  im-  Gen.  Stats,  c.  102,  §  19  ;  Gibbens  v.  Cur- 
pressed  by  the  testator's  intent  in  case  tis,  8  Gray,  392.  Where  the  will  gives  to 
of  a  devise.     181  Penn.  St.  551.  the  executors  a  power  to  sell  the  land 

The  general  principle  is,  that  chan-  in  case  of  a  deficiency  of  assets,  they 

eery  has  no  inherent  jurisdiction  in  such  should  sell   under  the  power  and   not 

matters,     except    for    enforcing    some  under  the  statute.     5  Dem.  (N.  Y.)  14, 

specific  Hen  or  right  in  the  land.     Wms.  251. 

F^xrs.   650;    supra,    §    212,    and    cases         '  Twitty  v.   Lovelace,   97    N.   C.   54. 

cited.  And  see  §  515. 

'^  Greville  v.  Browne,  7    H.   L.   Cas.         -i  Flood  w.  Strong,  108  Mich.  561. 
689;    Bench    v.    Biles,    4    Madd.    187;         '  Walker  z/.  I lardwicke,  i    My.  &  K. 

Poulson  V.  Johnson,  2  Stew.  529;  Cor-  396;   i  Sim.  84;     Van  Vechten  v.  Kea- 

652 


CHAP.    1. 


TITLE,    ETC.,    TO    REAL    ESTATE. 


§512^ 


legatees,  is  the  chancery  method  of  causing  the  whole  property, 
real  and  personal,  of  a  decedent,  to  be  so  applied  among  claim- 
ants, that  all  equities  shall  be  preserved  according  to  due  order.' 
Where  land  is  devised  by  decedent,  with  condition  precedent 
or  other  incumbrance  charging  it  with  the  payment  of  his  gen- 
eral or  specific  debts,  the  incumbrance  must  be  fulfilled  accord- 
ingly.^ 


§  5  I  2a.  Dealing  with  Mortgages  on  Real  Estate.  —  Where,  af- 
ter the  death  of  a  beneficiary  under  a  will,  the  executor,  in 
order  to  save  the  expense  of  a  foreclosure,  takes  a  conv-eyance 
of  the  premises  covered  by  a  mortgage  belonging  to  the  estate. 


tor,  63  N.  Y.  52;  Wms.  Exrs.  1705. 
As  this  rule,  after  all,  is  subject  to 
proper  expressions  of  testamentary  in- 
tention, numerous  subtle  refinements 
are  found  in  the  decisions  which  inter- 
pret this  intention.  See  Wms.  Exrs. 
1 694-1 7 1 2,  and  Perkins's  notes,  where 
this  question  is  examined  at  length. 

American  cases  admit  the  general 
maxims  of  exoneration  ;  and  hence  the 
rule,  supported  by  numerous  American, 
as  well  as  English,  equity  decisions, 
that  debts  contracted  by  a  testator, 
although  secured  by  mortgage,  are  to 
be  paid  presumably  out  of  his  personal 
property  to  the  exoneration  of  his  real 
estate.  Supra,  §  430 ;  Sutherland  v. 
Harrison,  86  111.  363 ;  Plimpton  v. 
Fuller,  II  Allen,  140;  Towle  v.  Swasey, 
106  Mass.  100;  McLenahan  v.  Mc- 
Lenahan,  3  C.  E.  Green,  101  ;  2  Salk. 
449 ;  Howel  v.  Price,  i  P.  Wms.  292 ; 
Wms.  Exrs.  1 694-1 697,  and  cases  cited. 
Even  as  to  personal  assets  from  a 
foreign  jurisdiction.  See  90  Tex.  245. 
But  this  is  an  equitable  doctrine  with 
many  reservations,  and  the  late  English 
stats.  17  &  18  Vict.  c.  113,  and  30  &  31 
Vict.  c.  69,  pronounce  against  such  a 
rule  of  interpretation.  The  New  York 
statutes  likewise  discountenance  such 
presumptions;  and,  in  that  State,  a 
mortgage    debt    i.s     primarily    charged 


upon  the  real  estate  mortgaged,  unless 
a  will  clearly  directs  otherwise ;  which 
seems  the  fairer  doctrine  on  this  subject. 
Waldron  v.  Waldron,  4  Bradf.  Sur.  114; 
Van  Vechten  v.  Keator,  63  N.  Y.  52. 
In  some  States  real  estate  taxes  due  at 
testator's  death  must  be  paid  out  of  the 
personalty.     §  428. 

'  See  Wms.  Exrs.  17 13-1720,  and 
numerous  cases  cited  ;  i  Story  Eq.  Jur. 
§  558  et  seq.  In  the  United  States,  gen- 
erally, by  statute,  all  the  property  of  the 
deceased,  real  and  personal,  is,  in  equity, 
to  be  applied  as  follows,  when  no  statute 
or  express  will  prescribes  a  different  or- 
der of  application,  exhausting  all  the  as- 
sets of  each  class  before  proceeding  to 
the  next:  (i)  The  general  personal  es- 
tate. (2)  Real  estate  specially  devised 
for  the  payment  of  debts.  (3)  Real  es- 
tate descended.  (4)  Real  estate  devised, 
though  charged.  4  Kent  Com.  421. 
And  see  stipra,  §  490;  2  Jarm.  Wills, 
588-590;  Wms.  Exrs.  1693,  Perkins's 
note;  Perry  Trusts,  §  566.  While 
creditors  are  not  confined  to  this  gen- 
eral order,  legal  representatives,  heirs, 
legatees,  and  devisees  have  rights  for 
relief  against  each  other  in  case  the 
true  order  is  disarranged.  Perry  Trusts, 
§566. 


See  115  N.  C.  366. 


653 


§512/^  EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 

he  must  account  therefor  as  personalty  to  the  administrator  of 
such  deceased  beneficiary  ;  but  otherwise  as  to  lands  acquired 
under  foreclosure  and  bought  in  to  protect  the  estate  before 
such  beneficiary's  death." 

Subject  to  exceptions  founded  in  covenant  or  testamentary 
intention,  the  rule  is,  that  if  the  deceased  was  not  liable  person- 
ally to  the  mortgagee  or  other  lienholder  for  the  debt  secured 
upon  the  land,  the  personal  property  cannot  be  applied  to  its  satis- 
faction ;  he  holds  the  land  subject  to  the  lien,  but  is  not  liable 
himself,  nor  is  his  estate  other  than  the  land  liable  for  the  debt.^ 
But  it  is  otherwise  where  the  decedent  contracted  the  mortgage 
debt  or  actually  assumed  an  incumbrance  already  existing.^ 

§  5  I  2b.  Charges  and  Allo'^anees  'vtrith  reference  to  Real  Estate  ; 
Reimbursement,  etc.  —  Dealings  with  real  estate  so  far  as  ap- 
propriate, may  justify  special  charges  and  allowances  or  a  higher 
rate  of  commissions  to  the  fiduciary  than  is  usual  in  administra- 
tion/ He  may  thus  be  allowed  for  a  salary  paid  a  collecting 
agent; 5  for  a  broker's  fee  in  procuring  a  sale;^  and  for  taxes, 
water  rates,  repairs,  or  insurance,  upon  the  principles  already 
discussed. 7 

Where  realty  of  the  decedent  has  been  lawfully  converted 
into  personalty  by  a  sale,  the  proceeds  are  in  the  hands  of  the 
executor  or  administrator  for  all  purposes  of  administration  ; 
and  before  distributing  this  fund  to  the  residuary  legatees  or 
distributees,  the  representative  may  pay  the  balance  of  the  de- 
cedent's debts,  or,  what  is  the  same  thing,  may  reimburse  him- 
self for  all  legal  debts  paid  or  incurred  in  excess  of  the  personal 
estate  that  came  to  his  hands. ^"^ 

'  Barclay  v.  Cooper,  42  N.  J.  Eq.  516.  have  observed  that  taxes  and  water  rates 

See  supra,  §  214.  chargeable  on  land  before  an  owner's 

^  Minter  v.    Burnett,    90    Tex.    245,  death  may  well  be  paid  by  his  executor 

248,  and  cases  cited.  or  administrator,  but  not  those  usually 

3  lb.  which    are    charged    after   his   death. 

*  See  Part  VII.,  c.  2.  Supra,  §  428,  and  cases  cited  in  notes; 

5  Dey  V.  Codman,  39  N.  J.  Eq.  258.  Lucy  v.  Lucy,  55  N.  H.  9 ;  Kimball  v. 

^  Dey  V.   Codman,  supra.     And  see  Sumner,  62  Me.  305.     So  as  to  insur- 

Stone  V.  Strong,  42  Ohio  St.   53;   121  ance.     lb. 
Cal.  609.  '  Bolton  Re,  146  N.  Y.  257. 

'See  supra,  §§212,  213,   428.     We 

654 


CHAP.  II.]  STATUTE  SALES,  ETC.,  OF  REAL  ESTATE.      §513 


CHAPTER  II. 

STATUTE  SALES  OR  MORTGAGES  UNDER  JUDICIAL  LICENSE. 

§  5  1 3-  Modern  Legislation  permitting  Sales  under  a  Judicial 
License.  —  In  the  United  States  are  various  modern  enactments, 
of  strictly  local  application,  by  virtue  of  which  executors  and  ad- 
ministrators, like  other  fiduciaries,  may  be  judicially  licensed  to 
sell  real  estate  in  special  cases,  where  the  welfare  of  interested 
parties  requires  it,  and  they  have  no  adequate  authority  other- 
wise. In  the  present  instance  the  usual  object  of  a  license  is, 
in  the  course  of  administration,  to  pay  debts  and  legacies,  where 
the  personal  estate  of  the  deceased  person  proves  insufficient 
for  such  purposes,"  including  the  reasonable  costs  and  expenses 
of  settling  the  estate.^  In  American  practice  the  probate  court 
is  usually  invested  with  an  appropriate  statute  jurisdiction  ;  for 
such  relief  the  executor  or  administrator  presents  his  petition 
for  a  license,  representing  the  facts  essential  to  the  case ;  and 
the  license  being  granted,  its  terms  must  be  strictly  pursued. 
In  the  execution  of  a  statute  power  like  this,  the  terms  of  the 
legislative  grant,  with  its  limitations,  should,  like  the  power  con- 
ferred by  a  testator  under  his  will,  be  carefully  observed  by  the 
court  which  issues  the  license,  and  by  the  representative  who 
sells  under  it.^  And  if  the  statute  made  can  be  pursued  with 
advantage  for  such  purposes,  equity  should  take  no  jurisdiction 
of  the  case,"*  nor  interfere  with  the  sale  made  in  proper  pursu- 
ance of  the  license.s 

'  Recent  statutes,  however,  authorize  heirs.     Mass.   Pub.   .Stats,  c.   131,  §  11. 

sales  and  mortgages    by    Hcense    of  a  As  to  sales  by  foreign  representatives, 

court  for  other  purposes,  as,  for  instance,  see  Mass.  Pub.  Stats,  c.  134,  §  16. 

to    discharge    contingent     interests    in  ^  See  40  N.  J.  Eq.  173. 

an  estate.     See  Mass.  Pub.  Stats,  c.  142.  ^  Mass.  Pub.  Stats,  c.  134  ;  67  Conn. 

Or  to  sell  or  release  a  cemetery  lot.     lb.  i.     Proceedings   are   not,  under  some 

Or  where  the  power  under  a  will  was  codes,  confined  to  the  probate  court.     63 

dependent  upon  the  consent  of  a  person  Conn.  332. 

since  deceased.     lb.     Or,  under  certain  ^  Springfield  v.  Hurt,  15  Fed.  R.  307. 

circumstances,  where  there  are  no  known  '  Johnson  v.  Holliday,  68  Ga.  81. 

655 


§514  EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 

§  5  1 4-   Incense   restricted   to    such    Land    as    may   be    needful ; 
Rights  of  Heirs  and  Devisees  respected  ;   Qualifications  of  Rule,  etc. 

—  A  license  to  sell  land,  for  the  payment  of  debts  and  legacies, 
is  usually  restricted  to  the  actual  necessities  of  the  estate  upon 
the  exhaustion  of  personal  assets  ;  though  such  statutes  provide 
that,  where,  by  a  partial  sale  of  land,  the  residue  or  some  spe- 
cific part  would  be  greatly  injured,  the  court  may  license  a  sale 
of  all  or  of  such  part  as  may  appear  to  be  most  for  the  interest 
of  all  concerned.'  Nor  are  the  rights  of  heirs  and  devisees  to 
be  ignored  ;  but  they  should  have  due  notice  of  the  petition,  and 
opportunity  to  avert  the  necessity  of  a  sale  ;  as,  perhaps,  by 
making  up  the  deficiency  themselves.  But,  by  our  legislative 
policy,  real  estate  descends  to  heirs,  or  goes  to  devisees,  subject 
to  administration  and  the  due  settlement  of  debts  and  legacies, 
and  this  liability  continues  against  not  only  such  parties,  but 
purchasers  from  them,  until  the  administration  is  closed  ;  ^  and 
where  there  exist  lawful  claims  and  insufficient  personal  assets 
to  meet  them,  it  is  the  duty  of  the  representative  to  apply  for  a 
license,  and  of  the  court  to  grant  it.^ 

Until  the  will  is  proved  or  letters  of  administration  are  granted, 

'  Mass.  Pub.  Stats,  c.  134;  90  N.  C.  consisting  of  a  farm,  an  administrator 

551.     The  orphans'  court,  as  such  stat-  with  will  annexed  was  allowed  to  sell 

utes  usually  run,  cannot  order  to  be  sold  the  land  under  statute  license  for  pay- 

for  debts  an  equitable  interest  of  the  de-  ment  of  legacies.     And  see  §  407.     But 

cedent  in  land  under  a  contract  of  sale,  an  executor  and  residuary  legatee  who 

Ilendrick.son  v.  Hendrickson,  41    N.J.  has  given  bond  to  pay  debts  and  legacies 

Eq.  376.  cannot   be  licensed  to  sell  land.     133 

But  jurisdiction  to  grant  a  license  ex-  Mass.  447  ;  §  138.     A  sale  or  mortgage 

isting,  the  boia  fide  purchaser's  title  is  by  heirs  or  devisees,  before  administra- 

not  to  be  affected  by  collateral  facts,  tion  has  proceeded  far  enough  to  settle 

which,   if   known  to  the  court,   might  or    bar   out     claims,    leaves    the    land 

have  prevented  the  license  from  being  meanwhile  with   a  sort  of  cloud  upon 

granted.  the  title;  but   after  administration  has 

^  State  7'.  Probate  Court,  25  Minn.  22.  been   fairly    completed,    such    sale    or 

^  Whether  a  surviving  spouse's  inter-  mortgage  would  be  practically  clear  of 

e-^it  in  the  decedent's  real  estate  can  thus  the    incumbrance.     An     administrator 

be  .sold,  see  107  Ind.  121.     A  mere  re-  cannot    sell    the   land    of  his  intestate 

ver.sionary  interest  in  expectancy  cannot  while  it  is   held  adversely  by  another, 

be,  unless  statute   specifies.     1 27    Ind.  without  proceedings  for  possession.     68 

332.  Ga.  81.     And  see  67  Ala.  173;  51  Mich. 

See  Smith  v.   Well.s,    134    Mass.  11,  360.     There  may  be  a  sale  at  the  in 

where,  after  a  residuary  legatee's  death  stance  of  an  administrator  de  bonis  non. 

who  was  also  executor,  the  only  property  83  Iiul.  411  ;  59  Tex.  172. 

656 


CHAP.    II.]      STATUTK    .SALES,    ETC.,    OF    REAL    ESTATi; 


§    515 


the  court  is  without  jurisdiction  to  order  a  sale  of  land  in  aid  of 
assets.'  But  after  this  jurisdiction  attaches,  application  should 
be  made  for  license  to  sell  within  a  reasonable  time  after  the 
condition  of  the  estate  can  be  ascertained  ;  nor  should  the  court 
on  the  other  hand  delay  its  permission  to  sell  upon  any  hypothet- 
ical regard  for  personal  assets  which  are  practically  unavailable 
for  an  adjustment  as  promptly  as  creditors  of  an  estate  have 
usually  the  right  to  expect.^  Heirs  and  devisees  cannot  prevent 
a  license  from  issuing  in  a  suitable  case^  on  the  representation 
of  the  fiduciary,  though  they  might  save  the  land,  perhaps,  if  no 
other  urgency  existed,  by  averting  the  necessity  for  a  sale, 

§515.  Legislative  Provisions  as  to  Sale  ;  Essentials  of  a  Pur- 
chaser's Title.  —  The  local  statutes  provide  in  detail  the  method 
of  procuring  a  license  to  sell,  and  of  acting  under  it,"*     Any  sur- 


'  Whitesides  v.  Barber,  24  S.  C.  373. 

^  A  petition  for  a  license  was  denied 
where  the  creditors  had  been  culpably 
negligent  in  applying  for  the  appoint- 
ment of  an  administrator.  63  N.  H. 
29.  And  see  as  to  long  delay  justifying 
an  injunction  against  the  sale,  86  Mo. 
253.  See  also  60  Conn,  (y-^^  as  to  wasted 
personalty. 

375  Ala.  335. 

*■  American  statutes  have  usually  the 
following  points  in  common:  (i)  an 
application  to  the  court,  upon  which  the 
license  is  granted;  (2)  a  special  bond 
covering  such  proceeds  of  the  sale  as 
may  be  reahzed;  (3)  the  formal  sale 
of  the  land,  usually  at  public  auction ; 
(4)  the  execution  of  a  deed  with  proper 
recitals  to  the  purchasers,  covenanting 
that  the  representative's  sale  has  been 
legal  and  upon  due  authority;  (5)  a 
proper  application  of  the  proceeds  aris- 
ing from  the  sale.  As  to  warranty,  the 
bona  fides  of  a  sale,  the  right  of  a  repre- 
sentative to  purchase,  etc.,  the  maxims 
set  forth,  supra,  §  361,  as  to  sales  of 
personal  property,  have  here  a  corre- 
sponding application.  See  U.  S.  Dig. 
1st  series,    Executors  and  Administra- 


42 


65 


tors,  1 409-1 65 2  ;  local  codes  and  de- 
cisions; 2  Sugd.  Vend.  &  P.  8th  Am. 
ed.  714,  note;  Wms.  Exrs.  650,  and 
Perkins's  notes.  A  sale  may  be  ad- 
journed like  other  such  sales.  41  N.  J. 
Eq.  515.  But  if  the  representative  un- 
reasonably delays  availing  himself  of  his 
license,  recourse  should  be  had  to  the 
court  which  issued  the  license.  105 
Penn.  St.  315.  Confirmation  refused 
by  the  court  where  the  price  was  grossly 
inadequate  though  the  sale  was  fairly 
conducted  in  other  respects.  80  Va.  695. 
Some  codes  require  confirmation,  others 
do  not. 

A  sale  and  deed  by  an  administrator 
who  acts  under  a  void  appointment  are 
void.  Allen  v.  Kellam,  69  Ala.  442 ; 
§  160;  99  Mich.  590.  A  private  sale  is 
void  where  a  public  sale  is  ordered, 
no  Cal   579 

The  doctrine  of  caveat  e7nptor  applies 
to  such  sales,  and  the  purchaser  cannot 
renounce  his  bid  or  repudiate  and  get 
back  his  purchase-money,  because  of 
defective  title,  in  the  absence  of  any 
fraud  by  the  executor  or  administrator. 
Tilley  v.  Bridges,  105  111.  336;  Jones  z. 
Warnock,  67  Ga.  484  ;  67  Ala.  508.     Or 

7 


§  515 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VI. 


plus  proceeds  which  may  remain,  after  satisfying  the  purposes 
of  the  sale,  belong  to  the  heirs  or  devisees,  as  though  impressed 
with  the  original  character  of  the  property.  As  to  the  essen- 
tials of  a  purchaser's  title,  the  terms  of  the  statute  must  furnish 
th.c  guide  ;  and  while  merely  incidental  irregularities  may  be 
cured  by  the  completion  or  confirmation  of  the  sale,  there  must 
have  been  jurisdiction  in  the  court,  and  a  substantial  compliance 
with  the  fundamental  requirements  of  the  statute,  both  in  grant- 
ing the  license  and  in  pursuing  it.'  The  representative  warrants 
nothing  in  the  title  of  the  land ;  nor  is  it  for  him  to  remove  in- 
cumbrances ;  -  and  even  should  he  thus  covenant  he  will  not  bind 
the  estate  but  himself.^ 


even,  as  it  is  held,  where  the  fiduciary 
fraudulently  asserted  that  there  was  no 
incumbrance.  Riley  v.  Kepler,  94  Ind. 
308.  One  buys  subj  ect  to  any  outstand- 
ing agreement  between  decedent  and  a 
third  party,  which  complies  with  the 
fomialities  of  law.  Shup  v.  Calvert, 
174  111.  500. 

The  purchaser's  title,  as  against  heir 
or  devisee,  dates  from  the  sale  or  the 
court's  confirmation  of  the  sale,  or  the 
execution  of  the  conveyance,  according 
to  the  intendment  of  the  local  statute. 
In  some  States  the  fiduciary  executes 
his  own  conveyance,  conformably  to  the 
terms  of  sale;  in  other  States,  the  con- 
veyance is  executed  by  order  of  the 
court. 

'  Local  decisions  in  construction  of 
local  statutes  will  afford  to  the  practi- 
tioner the  true  rules  of  guidance.  The 
main  question  is  one  of  statute  interpre- 
tation :  as  to  what  provisions  in  fact 
shall  be  regarded  as  imperative,  and 
what  as  merely  directory.  The  disposi- 
tion is  to  regard  an  infirm  sale  as  void- 
able at  the  election  of  those  injured  by 
it,  rather  than  to  pronounce  it  utterly 
null  and  void,  where  there  was  jurisdic- 
tion and  all  statute  provisions  plainly 
imperative  were  followed.  On  the  ques- 
tion of  confirmation  of  the  sale  only 
those  questions  which  the  statute  treats 


as  material  can  be  considered  by  the 
court. 

^  Supra,  §212;  Le  Moyne  v.  Quimby, 
70  111.  399 ;  Ives  V.  Ashley,  97  Mass. 
198 ;  2  Sugd.  V.  &  P.  687,  note. 

^  Hale  V.  Marquette,  69  Iowa,  377. 
Where  an  administrator  sold  land  with- 
out leave  of  court  and  applied  the  pur- 
chase-money to  the  payment  of  debts, 
the  purchaser  was  subrogated  to  the 
rights  of  the  creditors  who  had  been 
thus  paid,  but  no  further  lien  was  al- 
lowed him.  Duncan  v.  Gainey,  108 
Ind.  579. 

After  long  lapse  of  time  from  the  sale 
under  a  license,  every  reasonable  intend- 
ment will  be  resorted  to,  to  uphold  the 
regularity  of  the  proceedings.  Starr  v. 
Brewer,  58  Vt.  24.  An  action  to  set 
aside  such  a  sale  as  fraudulent  and  void 
and  to  compel  the  fiduciary  to  perform 
a  trust  charged  on  the  land  is  a  matter 
of  equity  jurisdiction.  Caldwell  v.  Cald- 
well, 45  Ohio  St.  512.  Formal  defects 
cured  by  retrospective  legislation.  66 
Iowa,  552.  Under  the  Ohio  statute, 
the  costs  and  expenses  of  the  sale  of  in- 
cumbered real  estate  take  precedence 
of  mortgages  and  other  liens.     42  Ohio 

St.  53- 

As  to  the  adjustment  of  assessed 
taxes,  see  Fessenden's  Appeal,  77  Me. 
98. 


658 


CHAP.  II.]  STATUTE  SALES,  ETC.,  OF  REAL  ESTATK.      §  S'/ 

§  515^-  "^^^  same  Subject;  Principal  and  Ancillary  Jurisdic- 
tions.—  It  is  no  objection  to  an  order  for  the  statutory  sale  of 
real  estate  in  one  State  to  pay  debts,  that  there  was  personal 
property  in  the  State  of  principal  administration  sufficient  for 
their  payment ;  for  courts  and  creditors  of  the  local  site  are  not 
compelled  to  forego  thus  their  just  advantage.' 

§  5  1 6.  Judicial  License  to  Mortgage  Real  Estate^f or  Certain  Pur- 
poses. —  In  connection  with  the  payment  of  debts,  legacies,  and 
charges,  or  for  other  stated  purposes,  a  personal  represent- 
ative may,  as  some  American  statutes  provide,  be  licensed  to 
mortgage  real  estate  of  his  decedent.^  But  the  statute  should 
be  explicit,  for  the  right  to  sell  does  not  imply  the  right  to  mort- 
gage the  realty ;  ^  nor  upon  an  application  for  a  license  to  sell 
should  a  license  to  mortgage  be  granted.'' 

§  5  I  7-  Levy  of  Execution  obtained  against  the  Representative. 
—  In  some  States,  lands  may  be  subjected  to  the  payment  of 
claims  against  the  estate,  by  levying  thereon  an  execution  ob- 
tained against  the  personal  representatives 

'  Lawrence's  Appeal,  49  Conn.  411.  of  probate,  sells  and  conveys  an  equity 

An  executor  before  selling  ought  to  of  redemption  in  lands  whereof  he  is 

make  sure  that  he  has  complied  with  the  seized  of  the  unincumbered  fee,  nothing 

/ex  rei  slice  as  to  probate  of  the  will,  passes  by  his  deed.    Bradley  j'.  Simonds, 

60  Tex.   353.     Sometimes  a  represent-  61  N.  H.  369.     But  a  mortgagor's  equity 

ative  who  pays  debts  of  the  estate,  may  of  redemption  is  liable  to  sale  ;  his  lands 

fairly  be  subrogated  to  the  rights  of  the  after  his  death  may  be  sold  subject  to 

creditors,   and  have  land  sold  for  his  the  incumbrances  he  created.     67  Ala. 

reimbursement.     Denton  v.  Tyson,  118  508. 

N.  C.  542.     But  a  sale  of  land  for  the  *  145  Ind.  281. 

payment  of  debts  whose  lien  under  the  If  an  executor  has  authority  to  mort- 

local  statute  has  expired,  is  a  nullity,  gage  real  e.state  under  an  express  power 

178  Penn.  St.  245.  contained  in  the  will,  he  may  execute  a 

^  Mass.   Pub.  Stats,  c.  134,  §§  19,  20.  mortgage  in  conformity,  without  procur- 

These  statutes  are  quite  strict  in  expres-  ing  an   order  from  the  court ;  and  the 

.sion,  and  rarely  apply  in  favor  of  a  gen-  lien  of  such  a  mortgage  will  be  benefi- 

eral  administrator;  the  license  to    sell  cially  upheld.    Iowa  Co.  z'.  Holdenbaum, 

enabling   him  sufficiently  to  discharge  86  Iowa,  i. 

his  official  functions.  '  4  Allen,  417  ;  5  Watts,  367  ;   14  Me. 

^  See  1 14  Penn.  St.  618  ;   162  111.  232  ;  320.     But  that  course  is  not  universally 

Aliens.  Ruddell,  51  S.  C.  366.     Ifanad-  permitted  in  this  country.     See  16  111. 

ministrator,  under  a  license  from  a  judge  318;  Wms.  Exrs.  651,   Perkins's  note. 

659 


PART  VII. 

ACCOUNTING  AND  ALLOWANCES. 


CHAPTER  I. 


ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS. 

§  5^8-  Obligation  to  keep  Accounts;  Equitable  Jurisdiction  in 
England.  —  An  executor  or  administrator  is  bound  to  keep  clear, 
distinct,  and  accurate  accounts  of  his  management  of  the  estate 
committed  to  him,  like  any  trustee,  which  accounts  ought  in 
some  way  to  be  open  to  the  inspection  of  persons  interested  in 
the  estate.'  Upon  the  analogies  of  trusteeship,  English  courts 
of  equity  long  exercised  a  jurisdiction  over  such  matters,  while 
the  powers  of  spiritual  tribunals  appeared  inadequate  either  for 
compelling  the  personal  representative  to  administer  the  estate 
or  to  disclose  the  course  of  his  dealings  with  it.  Among  the 
various  functions  of  chancery,  therefore,  has  been  that  of  enter- 
taining a  bill  of  discovery  against  the  personal  representative, 
and  forcing  him  to  set  forth  an  account  of  the  assets  and  the 
manner  in  which  he  has  applied  them.^  Upon  the  admitted 
justice  and  policy  of  such  coercion,  and  the  confessed  inadequacy 
of  all  other  tribunals  to  apply  it,  the  lord  chancellors  firmly  rested 
their  authority.  Nor  did  they  defer  to  the  ordinary  himself  in 
these  proceedings  ;  for  a  bill  might  be  brought  in  chancery,  for 
the  discovery  of  assets,  before  a  will  had  been  proved  in  the 
spiritual  courts,  and,  indeed,  while  probate  litigation  was  pend- 
ing ;  they  did  not  deem  it  needful  to  wait  until  an  executor  had 
received  his  letters  testamentary,  provided  a  trust  of  some  sort 

'Freeman  v.  Fairlee,  3  Mer.  43;  ^Howard  ?/.  Howard,  i  Vern.  134; 
Perry  Trusts,  §821;  Rhett  v.  Mason,  Brooks  v.  Oliver,  Ambl.  406;  Wms. 
18  Gratt.  541.  Exrs.  2005,  2006;   Story  Kq.  Jur.  §  534. 

660 


CHAP.    1.]    ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §519 

could  be  alleged  and  proved  against  him  ;  and  even  though  an 
administrator's  accounts  had  been  passed  and  distribution  ordered 
in  the  ecclesiastical  forum,  chancery  might  at  discretion  re- 
investigate and  direct  an  accounting  de  novo.' 

§  519-  The  same  Subject;  Creditors'  Bills,  etc.;  English  Prac- 
tice. —  Proceedings  of  this  character  were  usually  brought  by 
what  was  known  as  a  creditors'  bill.  One  or  more  creditors  of 
the  estate  would  file  a  bill  in  chancery  on  behalf  of  themselves 
and  all  others  who  might  be  brought  in  under  the  decree,  with 
the  intent  of  preventing  any  undue  preferences  by  the  executor 
or  administrator  in  the  payment  of  claims,  and  causing  all  the 
assets  to  be  brought  in  and  appropriated  in  a  due  course  of 
settlement.^  If  assets  were  admitted  by  the  representative,  and 
the  petitioner's  debt  proved,  immediate  payment  therefor  was 
ordered  ;  ^  otherwise,  a  general  account  of  the  estate,  and  all 
debts  and  claims  upon  it,  was  taken  against  the  executor  or 
administrator,  and  an  appropriation  of  the  fund  directed  accord- 
ingly.'* As  one  creditor  might  thus  institute  proceedings  which 
would  bring  in  all  the  other  creditors  besides,  so  one  or  more 
legatees  or  distributees  might,  on  behalf  of  themselves  and  all 
others  similarly  concerned,  invoke  the  aid  of  chancery  with  cor- 
responding effect. 5  And  yet,  complicated  and  costly  as  might 
be  the  process  for  working  out  such  results,  none  were  conclu- 
sively bound  by  the  final  decree,  who  had  not  been  brought 
within  the  scope  of  the  suit ;  and  absent  creditors,  legatees,  or 
distributees,  who  had  been  guilty  of  no  laches  in  failing  to  respond 
and  becoming  parties  to  the  bill  in  equity,  might  afterwards  as- 
sert their  claims,  not,  indeed,  against  the  executor  or  admin- 
istrator himself,  but  for  contribution  from  the  creditors,  legatees, 

'  2  Vern.  47,  49 ;  Phipps  v.  Steward,  Coope  7/.   Carter,   2    De    G.    M.   &  G. 

I  Atk.  285;  2  Chanc.  Cas.  198.     Some  292. 

wilful  neglect  or  default  with  respect  to  ^  See  (•?.'/■;-«,  §  437. 

assets  was  usually,   however,  to  be  al-  ^  Woodgate  v.  Field,  2  Hare,  211. 

leged   and    shown,    as   the    ground   of  "•  Wms.  Exrs.  2007 ;     i  Russ.  &  My. 

invoking  chancery  remedies  in  cases  of  347. 

this    kind.     Wms.    Exrs.    2006,    note ;  ^  i\, 

661 


§  519 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


or  distributees,  who  had  obtained  at  much  cost  what  they  had 
supposed  their  own.' 

The  natural  tendency  of  all  this  must  have  been,  to  make 
practical  waste  of  the  assets,  while  theoretically  assuming  to 
save  them  ;  to  bury  the  better  part  of  an  estate  in  a  wholesale 
litigation,  lest  one  should  be  preferred.  Under  EngHsh  enact- 
ments during  the  reign  of  Victoria,  some  of  the  most  serious 
objections  to  these  prolix  and  costly  proceedings  have  been  re- 
moved ;  the  creditor,  legatee,  or  distributee  who  petitions,  has 
now  become,  in  a  measure,  the  master  of  his  own  suit,  pending 
a  decree,  and  need  not  serve  the  others  in  interest  :  chancery 
exercises  authority  with  apter  discretion  ;  and  a  suit  may  more 
readily  terminate,  as  such  suits  often  do,  in  the  settlement  or 
compromise  of  the  petitioner's  individual  demand,  the  proceed- 
ings for  administration  and  a  full  account  in  chancery  being 
consequently  dropped.-  Nevertheless,  the  English  equity  courts 
are  still  much  exercised  with  creditors'  bills  and  suits  for  admin- 
istration ;  ^  and,  as  incidental  thereto,  the  taxation  of  costs  *  ap- 


'  David  V.  Frowd,  i  My.  &  K.  200 ; 
Wms.  Exrs.  1450,  2008.  Members  of  a 
class  only  contingently  entitled  to  a  ben- 
efit under  the  vnW  cannot  maintain  an 
administration  suit.  Clowes  v.  Hilliard, 
25  W.  R.  224. 

2  Stats.  15  &  16  Vict.  c.  86;  22  &  23 
Vict.  c.  35;  2  Hare,  213;  Wms.  Exrs. 
2008  ef  seq.  See  also  equitable  reme- 
dies, post.  And  see  Nayler  v.  Blount, 
27  W.  R.  865  ;  Laming  v.  Gee,  27  W.  R. 
227  ;  WoUaston  v.  Wollaston,  L.  R.  7 
Ch.  D.  58. 

3  In  Wms.  Exrs.  2008  ct  seq.,  the  sub 
ject  will  be  found  discussed  at  length, 
with  numerous  citations.  Where  an 
account  of  assets  is  thus  sued  for,  the 
personal  representative  of  a  former  rep- 
resentative of  the  estate  is  properly 
joined  as  a  co-defendant  with  the  repre- 
sentative then  in  office.  Wms.  Exrs. 
2014;  Holland  v.  Prior,  i  My.  &  K. 
237.  And  as  to  co-executors,  see  L.  R. 
10  Ch.  4G4.  The  suit  may  be  brought 
still  on  behalf  of  other  creditors,  etc. 

66 


Eyre  v.  Cox,  24  W.  R.  317.  And, 
under  some  circumstances,  must  be. 
24  W.  R.  269. 

"  See,  e.g.,  among  very  recently  re- 
ported English  cases,  involving  ques- 
tions of  costs,  etc.,  L.  R.  10  Ch.  D.  468  ; 
L.  R.  7  Ch.  D.  ZZ^  176;  26  W.  R.  165; 
29  W.  R.  420,  821  ;  Moore  v.  Dixon, 
L.  R.  15  Ch.  D.  566.  And  as  to  award- 
ing costs  where  executors  had  distrib- 
uted to  wrong  parties  and  returned 
incorrect  accounts,  etc.,  see  25  W.  R. 
161  ;  also  24  W.  R.  51,  as  to  his  error 
or  wilful  mistake.  Where  it  is  probable 
that  the  estate  will  prove  insolvent,  the 
judgment  in  a  creditor's  action  should 
contain  provision  for  that  emergency. 
44  L.  T.  547.  Costs  of  an  administra- 
tion suit  are  sometimes  payable  out  of 
a  particular  fund  designated  by  the 
will.  44  L.  T.  499 ;  Sharp  v.  Lush,  L. 
R.  10  Ch.  D.  40,  468;  Penny  v.  Penny, 
L.  R.  II  Ch.  D.  440.  Interrogatories 
may  be  put  to  the  defendant  executor 
as  to  the  accounts.  44  L.  T.  547. 
2 


CHAP.   I.]   ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.   §   5  20 

pears  to  be  an  absorbing  cause  of  dispute.  And,  after  all, 
though  one  may  get  his  debt  or  legacy  paid,  he  cannot  readily 
obtain  an  inspection  of  the  administration  accounts. 

§  5  20.  The  same  Subject ;  Creditors'  Bills,  etc.,  in  American 
Practice.  —  In  various  instances,  few  of  which  are  very  recent, 
the  equity  courts  of  American  States  have  entertained  bills  filed 
by  creditors  and  others  in  interest,  who  seek  an  accounting 
from  the  executor  or  administrator,  in  connection  with  the  en- 
forcement of  their  individual  rights  in  the  disbursement  or  distri- 
bution of  the  assets.  And,  wherever  the  probate  and  common- 
law  courts  are  found  incompetent,  in  any  State,  to  afford  the 
relief  thus  sought,  a  court  of  equity,  as  such  courts  are  usually 
constituted,  may,  perhaps,  compel  the  executor  or  administrator 
to  account  for,  administer,  and  distribute  the  property  entrusted 
to  him.' 

But,  in  the  United  States,  modern  probate  practice,  as  ex- 
tended by  our  local  legislation,  affords,  usually,  all  the  facilities 


As  to  commencing  such  actions  by 
next  friend  on  behalf  of  infants  inter- 
ested, see  25  W^.  R.  873.  A  receiver 
may  be  appointed  on  motion  in  credit- 
ors' actions.  26  W.  R.  434.  Official 
referees  are  also  appointed.  See  29  W. 
R.  821.  And  see  passhn,  Wms.  Exrs. 
2008  ct  seq.  ;  supra,  §  437. 

'Colbert  v.  Daniel,  32  Ala.  314; 
Cram  v.  Green,  6  Ohio,  429;  2  Hayw. 
163 ;  Wright  v.  Lowe,  2  Murph.  354 ; 
Rogers  v.  King,  8  Paige,  210.  This 
jurisdiction  appears  to  be  reluctantly 
taken  in  most  States,  if  taken  at  all. 
Thus,  an  executor,  who  was  also  an 
agent  or  trustee  of  the  decedent  during 
his  life,  cannot,  after  the  final  settle- 
ment of  his  accounts  in  the  orphans' 
court,  be  called  upon  to  account  sepa- 
rately as  a  trustee  in  equity.  Vanmeter 
V.  Jones,  3  N.  J.  Eq.  520.  An  executor 
pro  fortna  need  only  account  for  the 
surplus  remaining  after  paying  debts. 
2  Har.  &  J.  191.  Order  for  an  account 
has,  in  some  cases,  been  declined  after 


a  long  interval.  8  Ired.  Eq.  141.  Or 
where  it  was  not  alleged  that  insufficient 
security  had  been  given  by  the  repre- 
sentative. 2  P.  &  H.  225.  In  Morgan 
7'.  Rotch,  97  Mass.  396,  it  is  held  that 
a  suit  in  equity,  charging  the  executor 
with  conduct  in  violation  of  his  trust, 
is  not  sustainable  where  he  has  not  yet 
rendered  a  final  account  in  the  probate 
court.  And  see  Garrett  v.  Stilwell,  10 
N.  J.  Eq.  313.  Stale  demands  are  not 
to  be  reopened.  35  Ark.  137.  But  a 
bill  filed  by  one  who  was  no  party  to  a 
final  settlement  in  the  probate  court 
may  treat  it  as  null,  and  invoke  a  court 
of  equity  to  compel  a  full  account.  5 
Cal.  58.  Legatees  and  next  of  kin 
should  not  be  joined  as  parties.  53 
Md.  550.  And  a  creditor  cannot  bring 
a  bill  to  have  an  account  taken  for  his 
own  benefit,  apart  from  other  creditors. 
2  N.  J.  Eq.  133.  See  5  Rand,  195;  3 
Sm.  &  M.  329;  I  Sandf.  Ch.  399;  3 
Johns.  Ch.  578 ;  Garvin  v.  Stewart,  59 
111.  229. 


e(>z 


§    5  20  EXECUTORS    AND    ADMINISTRATORS.  [PART  VH. 

now  needful  for  compelling  a  duly  qualified  personal  representa- 
tive to  account  for  his  management  of  the  estate  confided  to 
him  ;  and  that  by  a  process  comparatively  inexpensive  and  sim- 
ple, founded  upon  the  duty  he  owes  under  his  bond.  As  we 
shall  presently  show,  in  detail,  the  probate  court,  which  controls 
the  appointment  and  removal  in  the  first  instance,  has  become, 
in  most  of  the  United  States,  the  competent  and  convenient 
primary  forum  for  his  accounting ;  an  appeal,  of  course,  lying 
to  the  supreme  probate  and  equity  tribunal  of  the  State,  as  from 
other  probate  decrees.  The  American  rule  of  the  present  day 
is,  therefore,  with  few  exceptions,  that  the  court  of  chancery, 
usually,  has  neither  jurisdiction  nor  occasion  to  interfere  in  the 
settlement  of  the  estate,  and  to  order  an  accounting  by  an  exec- 
utor or  administrator."  And,  even  as  to  one  who  has  resigned 
or  been  discharged  from  his  trust,  our  law  inclines  to  treat  him 
as  one  whose  accounts  should  be  closed  under  probate  direction, 
as  in  the  case  of  one  who  has  died  in  ofifice,^ 

In  a  few  American  States,  however,  where  chancery  jurisdic- 
tion is  plenary,  equity  and  probate  courts  appear  to  exercise  a 
sort  of  concurrent  jurisdiction  as  to  the  accounts  of  executors 
and  administrators.^  And  where  it  becomes  necessary  to  apply 
to  a  court  of  equity,  as,  for  instance,  should  the  personal  rep- 
resentative himself  ask  for  necessary  instructions  as  to  the  final 

'Jones  V.  Irwin,  23  Miss.  361  ;  Mor-  786,  1931,  Perkins's  note;   i  Nott  &  M. 

gan  V.  Rotch,  97  Mass.  396;  Walker  v.  (S.  C.)  587. 

Cheever,    35    N.    H.    345;  Adams    v.  ^  Cf.  Gould  v.  Hayes,   19  Ala.  438; 

Adams,  22  Vt.  50;  Wms.  Exrs.  2006,  8  Sm.  &  M.  214;  t^},  Miss.  560.     And 

note  by  Perkins.     Cf.  10  N.  J.  L.  287.  see  81  N.  Y.  573.     See  also,  as  to  the 

Though,  as  to  matters  growing  out  of  bill  for  an  accounting  from  one's  prede- 

the  account,  such   as   adjusting   rights  cesser,  Stalhvorth  v.  Farnham,  64  Ala. 

between  the  representative  and  the  es-  259,345.     And  see,  as  to  administrators 

tate,  it   may  be  otherwise.     Adams  v.  dc  bonis  non,  supra,  §  408. 

Adams,  supra.  ^  Ewing    v.     Moses,     50     Ga.     264 ; 

In  the  United  States   as  well  as  in  Marsh    v.    Richardson,    49    Ala.    431  ; 

England,  the  common-law  courts  have  Sanderson  v.   Sanderson,    17   Fla.  820. 

no   immediate   cognizance    of    the    ac-  As  to  settling  two   estates   under  the 

counts  of  executors  and  administrators,  same  administrator,   see  56    Ala.   486. 

and  cannot   compel   a  performance  of  As   to    appellate   powers,  or   those   of 

the  duty;  this  being  a  branch  of  pro-  review  in  chancery,  where  the  probate 

bateor  equity  jurisdiction.     Wms.  Exrs.  tribunal  has  acted,  see  further,  §   530, 

post. 
664 


CHAP.    I.]    ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §    $21 

distribution  under  a  will,  that  court,  sometimes  —  having  all 
parties  before  it,  by  means  of  personal  or  substituted  service  — 
proceeds  to  the  settlement  of  the  representative's  accounts  and 
a  final  distribution.'  Convenience  may  sometimes  dictate  such 
a  course  ;  besides  which,  the  assumption  of  authority  by  so 
august  a  tribunal  may  not,  in  practice,  be  readily  disputed.  A 
court  of  chancery  will  rarely  interfere,  however,  where  the  pro- 
bate tribunal  has  already  taken  cognizance,  and  is  competent 
to  adjust  the  account.^  Provision  exists,  in  some  States,  for 
removing  the  settlement  of  an  estate  from  the  probate  to  the 
chancery  court,  in  certain  cases.^ 

§  521.  Ecclesiastical  and  Probate  Jurisdiction  of  Accounts  in 
England.—  To  come  to  our  main  subject,  namely,  ecclesiastical 
and  probate  jurisdiction  over  the  accounting  of  executors  and 
administrators.  We  have  seen,  that,  as  to  security  from  execu- 
tors, neither  the  spiritual  nor  the  probate  court  has,  in  England, 
been  vested  with  competent  powers ;  but,  that  courts  of  chan- 
cery rather  have  exercised  whatever  plenary  authority  was  avail- 
able ;■♦  also,  that  administrator's  bonds,  under  the  latest  acts, 


'  Daboll  V.  Field,  9  R.  I.  266  ;   Wms.  tribunals  as  those  of  primary  functions, 

Exrs.  2006,  and  note.     The  Mississippi  for  dealing  with  the  accounts  of  execu- 

code  aims,  in  regulating  such  suits,  to  tors  and   administrators,   and   keeping 

allow  in  a  single  suit,  complete  justice  the  records  of  settlement,  and  regulat- 

to    be    done    to    all    parties,    including  ing  details  after  its  own  simple  system ; 

creditors,     distributees,     and    sureties,  while  chancery  refrains  from  disturbing 

Buie  V.  Pollock,   55    Miss.    309.     And  these  methods,  unless  a  special  compli- 

see  Kent  v.  Cloyd,  30  Graft.  555.  cation  renders  its  intervention  desirable, 

The  original  and  inherent  jurisdiction  and,  on  the  whole,  discourages  costly 
of  equity,  in  a  State,  we  may  add,  over  and  burdensome  proceedings  out  of 
an  executor's  or  administrator's  ac-  course  by  creditors' bill  or  otherwise,  to 
counts,  is  not  to  betaken  away  by  mere  the  needless  shrinkage  of  the  assets-, 
implication,  whenever  a  legislature  all  parties  aggrieved  having  ample  op- 
clothes  the  probate  tribunals  with  com-  portunity  for  redress  by  taking  a  direct 
petent  powers  ;  nor,  even  at  this  day,  is  appeal  from  the  probate  decree. 
a  local  probate  authority  usually  found  ^  Seymour  v.  Seymour,  4  Johns.  409. 
adequate  for  adjusting  all  the  questions  ^  Marsh  v.  Richardson,  49  Ala.  431. 
which  may  arise  in  the  course  of  settling  That  the  probate  court  in  this  State  is 
estates,  still  less  for  exercising  exclusive  a  court  of  general  jurisdiction  for  the 
jurisdiction  in  such  matters.  And  yet  settlement  of  administration  accounts, 
the  American  tendency  is,  and  ought  to  see  65  Ala.  16. 
be,  to  favor  pre-eminently  the  probate  *  Suf>ra,^,  137;  Wms.  Exrs.  237. 

665 


§   5-1  EXECUTORS    AND    ADMINISTRATORS.  [PART    VII. 

do  not  enforce  the  duty  of  a  probate  accounting  very  strenu- 
ously.' 

One  may  readily  infer,  therefore,  that  jurisdiction  over  the 
accounting  of  executors  and  administrators,  as  e.xerted  by  the 
English  probate  or  ecclesiastical  tribunals,  is,  in  character,  quite 
secondary  to  that  of  chancery.  It  is  said,  that  neither  an  exec- 
utor nor  administrator  can  be  cited  by  a  probate  tribunal  ex 
officio  to  account  after  he  has  exhibited  an  inventory,  but  it 
must  be  at  the  instance  of  an  interested  party.  But  those  in- 
terested, and  those  with  even  the  appearance  of  an  interest, 
may,  we  have  seen,  require  an  inventory  to  be  produced.^ 
Whether  this  should  be  equally  true  of  proceedings  for  account 
or  not,  it  is  clear,  that,  at  the  instance  of  a  legatee,  or  next  of 
kin,  or  creditor,  the  representative  was  compelled  to  account 
before  the  ordinary,  while  the  probate  tribunal  was  an  ecclesias- 
tical one.  But,  while  a  creditor  might,  by  this  course,  gain  an 
insight  into  the  condition  of  the  assets,  in  aid  of  proceedings  in 
the  common-law  court  to  enforce  his  rights,  probate  tribunals 
had  no  authority  to  award  payment  of  his  debt  ;  and  hence,  the 
bill  in  equity,  praying  for  a  discovery  of  assets  and  administra- 
tion, was  more  commonly  brought.^  Legatees  and  distributees 
were  better  off ;  for  legacies  and  distributive  shares  might  for- 
merly be  sued  for  in  the  ecclesiastical  forum  ;  and,  indeed,  it  was 
by  a  sort  of  invasion  of  the  spiritual  jurisdiction  that  English 
chancery  courts  first  began  to  take  cognizance  of  such  rights  ; 
but  the  exclusiveness  of  chancery  authority  in  this  latter  re- 
spect, as  finally  conceded  by  the  English  parliament,  plainly 
indicates  how  inadequate  must  have  been  the  relief  which  an 
ecclesiastical  forum  in  that  country  was  ever  competent  to  af- 
fGrd.-* 

Upon  petition  for  an  account  before  the  probate  or  ecclesi- 
astical forum,  the  creditors,  legatees,  and  all  others  having  an 

'Acts  21    Hen.  VIII.  c.  5;  22  &  23  2061;    Toller,    495;    Burn    Eccl.    Law, 

Car.   II.  c.   10;    20  &  21   Vict.  c.  77;  487. 
Wms.  Exrs.  529-533;  sup}-a,  §  139.  ■*  Decks  v.   Strutt,   5  T.   R.  692.     It 

^  Wms.  Exrs.  2057  :   i  Salk.  315,  316;  was    Lord    Nottingham    who    first    e.\- 

3  Atk.  253,  by  Lord  Hardwicke;   Wain-  tended  the  system  of  equitable  relief  to 

ford  7'.  Haiker,  i  Ld.  Raym.  232.  legatees.      Wms.    Exrs.    2061.     Under 

^  Supra,  §    519;   Wms.    Exrs.    2058,  act  20  &  21  Vict.  c.  77,  §  23,  the  new 

666 


CHAP.   I.]   ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §    52  1 

interest  must  be  cited  to  be  present  ;  as,  otherwise,  an  account 
rendered  in  their  absence  will  not  bind  them.  At  the  hearing, 
whether  all  such  parties  appear  or  not,  the  judge  shall  proceed, 
and  the  account,  as  determined,  shall  be  final."  Inventory  and 
account,  in  modern  English  practice,  are  usually  returned  at 
the  same  time ;  for  neither  inventory  nor  account  is  produced 
unless  called  for ;  and  if  interested  parties  seek  the  one  they 
probably  request  the  other.  But  if  the  personal  representative 
exhibits  personally  his  inventory  and  account,  and  takes  his 
oath  to  the  truth  thereof,  he  has  performed  his  whole  duty  by 
creditors ;  for  they  are  not  permitted  to  contest  items,  but  his 
oath,  given  under  the  penalties  of  perjury,  concludes  the  matter 
here."^  If,  however,  a  citation  to  account  in  the  ecclesiastical 
forum  was  given  by  a  legatee,  or  next  of  kin,  the  account,  as 
rendered,  could  be  objected  to  or  disproved  ;  and,  notwithstand- 
ing his  general  oath,  the  personal  representative  might  be  put 
to  his  proof  of  each  item.^  Wherever  it  appeared,  upon  due 
investigation,  that  the  account  rendered  was  true  and  perfect, 
however,  the  court  decreed  its  validity ;  and,  as  to  all  interested 
parties  cited  in,  the  decree  became  final,  and  no  further  suit 
could  be  entertained.'* 

It  might  happen  that,  while  one  creditor  resorted  thus  to  the 
probate  tribunal,  another  would  invoke  the  ampler  relief  afforded 
by  chancery.5  But  chancery  judges  would  not  permit  creditors, 
legatees,  or  next  of  kin  to  use  the  process  of  the  spiritual  courts 
in  aid  of  an  administration  suit ;  and  wherever  one  who  had 
brought  his  bill  in  chancery  prayed  for  an  inventory  under  a 
probate  citation,  he  was  compelled  to  make  his  choice  which 
tribunal  to  proceed  in.^ 

court  of  probate  can  entertain  no  suits  made  bona  fide  in  sums  less  than  \os. 

for  legacies  nor  for  the  distribution  of  the  oath  of  the  executor  or  administra- 

the  residue.     lb.  tor  was  admitted  as  due  proof,  but  for 

'  4  Burn  Eccl.  Law,  487  ;  Wms.  Exrs.  pajTnent  of  larger  sums  he  had  to  pro- 

2058.  ducc  vouchers.     4  Burn  Eccl.  Law,  488  ; 

^  2   Add.    330 ;    4    Burn   Eccl.    Law,  Wms.  Exrs.  2060. 

488;  Wms.  Exrs.  2060.     As  to  whether  "•  Wms.    Exrs.    2060;    4    Burn    Eccl. 

objections  could  be  entertained  to  an  Law,  487. 

inventory,  there  has  been  some  variance  ^  2  Cas.  Temp.  Lee,  561. 

in  the  decisions.     Wms.  Exrs.  982,  2060.  *"  2   Cas.   Temp.    Lee,   31,    134,   268; 

^  The    rule   was   that   for   payments  Wms.  Exrs.  2061. 

667 


§    5  22  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

As  the  new  English  court  of  probate  is  invested  with  the 
same  authority  as  the  spiritual  courts  formerly  exercised  in  such 
matters,  but  under  nominal  restrictions  even  greater  as  to  af- 
fording practical  relief  to  those  entitled  to  ask  for  an  account, 
the  supremacy  of  the  English  chancery,  in  litigation  which 
relates  to  the  discovery  and  administration  of  assets,  appears  to 
have  become  more  firmly  established  than  ever."  That  return- 
ing either  inventory  or  account  to  a  probate  tribunal  has  become 
a  matter  of  indifference,  appears  conceded  by  the  very  form  of 
the  bond  now  prescribed  by  the  English  probate  court ;  -  it  is  a 
virtual  assent  that  courts  of  equity  shall  direct  and  supervise 
the  practical  administration  and  settlement  of  contentious  es- 
tates, and  that  non-contentious  business  may  be  privately  ad- 
justed, 

§  522.    Probate  Jurisdiction   of  Accounts  in  the  United  States. 

—  In  this  country,  where  courts  of  probate  are  temporal  tribu- 
nals, and  a  harmonious  judicial  system  prevails  in  the  several 
States,  the  primary  and  usual  forum  of  accounting  is  the  local 
probate  court,  whence  the  executor  or  administrator  received 
his  credentials.  To  this  tribunal,  by  the  American  system, 
regular  accounts  should  be  returned  by  the  personal  representa- 
tive, as  well  as  his  inventory.  The  bond,  which  neither  testacy 
nor  intestacy  exempts  one  from  furnishing,  obliges  the  rep- 
resentative to  return  an  account  to  the  probate  court,  not  upon 
request,  but  within  stated  and  regular  periods,  until  the  ad- 
ministration is  closed  ;  and  to  this  condition  the  sureties  of  the 
representative,  if  there  be  such,  stand  likewise  bound. ^  The 
system  of  probate  accounting  is  simple,  exact,  and,  except  in 
contentious  business,  attended  with  little  cost.  The  probate 
accounts  of  each  deceased  person's  estate  become  matter  of 
public  record.     y\nd,  while  the  parties  interested  may,  perhaps, 

■  See  Stat.  20  &  2 1  Vict.  c.  77  ;     Wms.  ministration  "  wheneve)-  reqni7-ed  by  law 

Exrs.  290,  292,  2062.  so  to  do."     lb.    We  have  seen  that,  even 

^  See  stipra,  §§  i37-r39;  Wms.  Exrs.  with  the  old  form  of  bond,  the  practice 

533.     The  condition  of  bond  (less  strict  of  returning  an  inventory  had  fallen  into 

than  that  formerly  stated)  is  that  the  disuse  in  that  country.     Supra.  §  229. 

principal  shall  make  and  exhibit  an  in-  '  Supra,  §   140.     Such    is   the   usual 

ventory  and  render  an  account  of  ad-  tenor  of  legislation  in  American  States 

668 


CHAP.    I.]    ACCOUNTS  OF  EXECUTORS  AND  ADMINlSTKATOkS.    §    $22 

be  suffered  to  close  up  an  estate  privately,  provided  those  en- 
titled to  the  surplus  all  agree,  and  all  creditors'  claims  and  lega- 
cies are  settled,  together  with  charges,  the  failure  to  render 
one's  probate  account  is,  nevertheless,  a  breach  of  the  bond,  and 
any  dissatisfied  party  in  interest  may  avail  himself  of  it.'  Un- 
der such  conditions  it  is  unlikely  that  an  estate  will  be  settled 
out  of  court  without  affording  to  all  concerned  a  fair  opportunity 
of  inspecting  the  administration  accounts,  unless,  at  all  events, 
their  respective  claims  are  fully  and  promptly  settled. 

If,  in  fact,  an  executor  or  administrator  settles  privately  with 


'  McKim  V.  Harwood,  129  Mass.  75. 

A  private  arrangement  between  some 
of  the  distributees  does  not  discharge 
the  administrator  as  against  any  one 
who  was  not  a  party  to  the  agreement ; 
nor  as  against  a  deceased  party  in  inter- 
est whose  own  representative  did  not 
enter  into  it.  Smihe  v.  Siler,  35  Ala. 
88.  And  distributees  may  generally,  at 
election,  hold  the  administrator  to  a 
strict  statutory  accounting.  Stewart  v. 
Stewart,  31  Ala.  207.  Even  if  the  as- 
sets were  all  used  in  preferred  charges, 
one  is  accountable.  Griffin  v.  Simpson, 
II  Ire.  126.  Liability  to  account  to 
legatee  not  discharged  by  legatee's 
written  receipt  of  a  nominal  sum  in  full 
of  all  demands.  Harris  v.  Ely,  25  N.  Y. 
138.  If  the  representative  claims  that 
the  petitioner  for  an  account  has  re- 
leased him,  the  surrogate  may  pass  upon 
the  question  of  the  validity  of  such  re- 
lease. 41  Hun,  95;  4  Dem.  366.  That 
an  account  filed  several  years  before 
had  not  been  acted  upon  does  not 
excuse  the  failure  to  render  periodical 
accounts  as  the  statute  requires.  44 
Ark.  509. 

Next  of  kin  and  residuaries  may  peti- 
tion to  compel  an  account.  Hobbs  v. 
Craige,  i  Ired.  L.  332.  So  may  a  cred- 
itor or  legatee.  Harris  v.  Ely,  25  N.  Y. 
138;  Wever  v.  Marvin,  14  Barb.  376. 
But  see  Freeman  v.  Rhodes,  3  Sm.  & 
M.   329.     Concerning    devisees,    see   4 


Desau.  330.  And  as  to  a  cestui  que 
trust  or  infant,  whose  trustee  or  guar- 
dian is  one  of  the  executors,  see  i  Sandf. 
Ch.  399.  The  representative  is  bound 
to  account  upon  the  application  of  any 
one  interested  in  the  estate,  and  if  the 
applicant  has  no  interest,  that  is  a  suffi- 
cient defence  before  the  probate  tribu- 
nal. Becker  v.  Hager,  8  How.  (N.  Y.) 
Pr.  68.  But  relief  by  injunction  is  not 
to  be  granted  on  this  ground.  lb.  See 
Okeson's  Appeal,  2  Grant  (Pa.)  303. 

Delay  in  settling  accounts  is  leniently 
regarded  by  some  American  courts 
where  no  fraud  or  misconduct  has  inter- 
vened. Jones  7/.  Williams,  2  Call,  102. 
But  correct  accounts  should  have  been 
kept  and  exhibited  to  any  interested 
party  desiring  to  see  them.  Rhett  v. 
Mason,  18  Graft.  541.  As  to  the  duty 
of  probate  accounting,  notwithstanding 
a  pending  chancery  suit,  see  Jones  v. 
Jones,  41  Md.  354.  Breach  of  the  bond, 
how  cured  before  suit  brought  on  it. 
McKim  V.  Harwood,  129  Mass.  75. 

A  sheriff  or  ex  officio  administrator 
may  be  cited  in  to  account.  McLaugh- 
lin V.  Nelms,  9  Ala.  925.  As  to  account- 
ing by  the  representative  of  a  deceased 
representative,  see  Schenck  v.  Schenck, 
3   N.   J.   L.  (2  Pen.)  562  ;  supra,  §  408. 

See,  in  general.  Sellers  v.  Sellers,  35 
Ala,  235;  Hillman  v.  Stephens,  16 
N.  V.  278;  Whiteside  z/.  Whiteside,  20 
Penn.  St.  473. 


669 


§   522  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

the  parties  interested,  rendering  no  final  account  to  the  probate 
court,  such  a  settlement,  though  often  perhaps  conveniently 
made,  will  not  absolve  him  from  compliance  with  the  law ;  and 
he  may  be  cited  into  court,  and  compelled  to  render  account 
there,  even  though  he  produces  the  receipts  of  all  the  surplus 
distributees,  acknowledging  the  payment  of  their  respective 
shares  in  full'  A  settlement  out  of  court  is  not  presumed  to 
intend  dispensing  with  accounting  ;  and,  even  if  it  did,  not  to 
account  is  a  breach  of  the  conditions  annexed  to  the  appoint- 
ment. Not  only  are  representatives  liable  to  suit  on  their  offi- 
cial bond  if,  on  being  cited  in,  they  neglect  to  render  accounts 
of  administration,  but,  under  some  American  codes,  they  may 
be  indicted  for  delinquency  in  this  respect,^  or  compelled  to 
pay  a  fine ;  ^  and  one  may  be  removed  from  his  trust  for  failing 
to  account  correctly  on  citation. '^  Any  one  showing  a  prima 
facie  right  may  require  the  account. 5  In  various  States,  more- 
over, the  probate  court  may,  of  its  own  motion,  and  without 
application  of  an  interested  party,  make  an  order  citing  in  the 
delinquent  representative.^  And  thus  American  probate  prac- 
tice is  seen  to  be  quite  different  from  that  which  prevails  in 
England. 

But  an  executor  or  administrator  is   not   bound   to   render 
either  account  or  inventory,  it  is  held,  where  no  property  has 

'  Bard  v.  Wood,  3  Met.  74  ;  Clark  v.  Eq.  282.     And,  upon  showing  the  court 

Clay,  1 1  Post,  393.  that  he  has  received  no  assets,  he  is  ex- 

"  See  States'.  Parrish,  4  Humph.  285  ;  cused;  or,  if  good  cause  be  furnished 

Davis  V.   Harper,   54  Ga.    180;   14  La.  for  further  delay,  the  court  is  usually 

Ann.  779.     He  may  be  imprisoned  for  empowered  to  grant  it.     Citation  to  the 

contumacy.     14  La.  Ann.  779.  representative    is    a    matter    of    right. 

3  Collins  V.  Hollier,  13  La.  Ann.  585.  Smith  v.  Black,  9  Penn.  St.  308. 

■•  See,  as  to  removal,  j;//ra,  §  154.  Neglect    of    the    representative    to 

*  14  Phila.  310,  322,  325.  make  answer  to  a  demand  to  pay  sums 

*  Witman's  Appeal,  28  Penn.  St.  due  by  way  of  distribution  may  be  con- 
376;  Campbell,  AV,  12  Wis.  369.  But  sidered  a  refusal  to  account.  Cutter  z/. 
one  is  not  considered   as    refusing   or  Currier,  54  Me.  81. 

neglecting  to  account,  within  the  usual         Where    the    representative    has    ap- 

meaning  of  American  statutes,  until  he  peared  in  answer   to  a  citation,  he  is 

has  been  cited  by  the  probate  court  for  affected  with   knowledge  of  all  subse- 

that    purpose.      Nelson    v.    Jaques,    1  quent  proceedings.     Duffy  z/.  Buchanan, 

Greenl.  139;  McKim  v.   Harwood,  129  8  Ala.  27. 
Mass.  75  ;  Barcalow,  Matter  of,  29  N.  J.  , 

670 


CHAP.  I.]  ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.  §  523 

come  to  his  hands."  And  where  special  circumstances  such  as 
lapse  of  time,  civil  commotion,  or  the  assent  of  interested  par- 
ties, have  rendered  an  exact  accounting  impracticable  while 
imputing  no  blame  to  the  representative,  the  court  will  be  lenient 
as  to  particulars.'  Nor  is  it  to  be  supposed,  in  general,  that  any 
one  but  a  creditor  or  party  in  interest  can  call  the  representa- 
tive to  account,  by  recourse  to  the  court. 

§  523-  Citation  of  Parties  interested  in  the  Account,  in  Ameri- 
can Probate  Practice  ;  their  Assent  to  its  Allo-wance.  —  In  Ameri- 
can probate  practice,  the  executor  or  administrator  presents  his 
account  to  the  register,  who  issues  a  citation  directing  next 
of  kin,  creditors,  legatees,  and  all  other  persons  interested  in 
the  estate,  to  appear  before  the  probate  court  at  a  day  stated, 
and  show  cause,  if  any  they  have,  against  its  allowance.  Cita- 
tion is  usually  by  newspaper  publication,  and  the  representative 
must  obey  the  mandate  as  issued  to  him.  But,  following  the 
distinctions  to  be  noticed  between  partial  accounts  and  the  final 
account,  those  of  the  former  kind  are  not  unfrequently  passed 
upon  by  the  judge  without  formal  citation,  the  rights  of  inter- 
ested parties  being  more  sedulously  protected  at  the  final  render- 
ing ;  nor  is  a  probate  court  always  left  without  some  statute 
discretion  as  to  requiring  a  citation  at  all.  Citation  may  be 
dispensed  with  when  all  persons  interested  (or,  more  particularly, 
those  entitled  to  the  surplus)  express,  in  writing,  their  request 
that  the  account  be  allowed  without  further  notice  ;  thereby 
assenting  virtually  to  its  allowance.  But  the  assent  of  one  or 
more  persons  in  interest  does  not  conclude  the  others,  nor  impair 
their  own  right  to  be  cited  in  before  the  account  is  allowed.^ 

'  W^alker  v.  Hall,  i  Pick.  20.  The  Where  the  representative,  without  good 
mere  filing  of  a  statement  under  oath  excuse,  states  his  account  unintelligibly 
that  the  representative  neither  received  he  may  be  ordered  to  restate  it  at  his 
nor  paid  out  anything  is  not  a  settle-  own  expense.  13  Phila.  284.  He  may 
ment  which  reUeves  him  and  his  sureties  be  required  to  file  a  suitable  account  in 
on  the  bond,  where  the  court  made  no  place  of  a  defective  one  which  is  unfit 
order.  88  Fed.  573.  And  though  the  to  be  passed  upon.  Hirschfield  v. 
parties  interested  should  agree  to  waive  Cross,  67  Cal.  661. 
all  inventory  or  account,  such  agreement  ^A  probate  citation  is  usually  pub- 
is revocable.     170  Mass.  506.  lished  once  a  week  for  three  successive 

'^  Clark    V.    Eubank,    80    Ala.    584.  weeks;  the  statute  requirement  should 

671 


§524  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

In  some  States,  where  one  of  the  persons  interested  in  a 
final  accounting  is  an  infant,  or  not  sui  Juris,  a  special  guardian 
must  be  appointed  to  represent  him."  But,  in  others,  a  pub- 
lished citation  appears  to  dispense  practically  with  other  formali- 
ties. The  fact,  that  a  probate  decree  may  be  voidable  as  to  an 
infant,  does  not,  of  course,  entitle  any  one  else  who  is  interested 
to  invoke  such  disability  on  his  own  behalf.^ 

§  5  24.    The  Form  of  Administration  Account.  —  In  his  probate 

account,  it  is  usual  for  the  executor  or  administrator,  by  way  of 
general  statement,  to  charge  himself  with  the  amount  of  assets 
which  have  come  to  his  hands,  and  ask  to  be  allowed  for  the 
amount  of  all  debts  and  claims  paid  by  him,  together  with  the 
expenses  of  administration  ;  the  balance  shown,  if  any,  going 
over  to  the  next  account,  or  remaining  finally  for  distribution. 
A  convenient  form,  adopted  in  various  States,  makes  the  gen- 
eral statement  on  the  face  of  the  account  refer  for  details  to 
schedule  A.  and  schedule  B. ;  schedule  A.  sets  forth  the  items 
with  which  the  representative  charges  himself,  making  the  in- 

be  carefully  followed.     See  16  Ala.  693.  and  in  many  others,  for  the  executor  or 

Where  notice  is  given  of  an  annual  or  administrator  to  pay  and  keep  his  own 

partial  settlement,  a  final  decree  is  im-  vouchers  for  payments,  presenting  such 

proper.      21    Ala.    363.     See    Scott    v.  vouchers  for  the  court's  inspection  upon 

Kennedy,   12    B.  Mon.   510;    20   Miss,  any  controversy. 

649;   Probate   Manuals  of  Smith,  Red  '  Gunning  v.  Lockman,  3   Redf.  273. 

field,  and  Gary,  passim;  also  the  pro-  -  Hutton  v.   WiUiams,  60  Ala.    107. 

visions  of  local  codes.     In  some  States  In  some  States  accessible  parties,  such 

greater  formality  appears  to  be  pursued,  as    a    distributee    residing    within    the 

The  account  must  be  first  presented  to  county,  are  entitled  to  personal  service 

the  judge,  accompanied  with  vouchers;  of  the  notice  of  final   settlement.     34 

it  mu.st  then  be   examined  and  stated  Miss.  322. 

for  allowance ;  after  which  notice  is  Neglect  of  legatees,  etc.,  to  attend  at 
given  of  the  teim  at  which  it  vnW  be  the  final  settlement,  enables  the  repre- 
reported  for  allowance,  that  all  who  are  sentative  to  proceed  ex  parte,  as  to 
interested  may  examine  the  account  as  those  who  f^l  to  appear.  4  Paige,  102. 
stated,  and  be  prepared  to  contest  it.  Notice  is  not  a  pre-requisite  to  probate 
See  Robinson  v.  Steele,  5  Ala.  473  ;  jurisdiction,  and  the  want  of  notice  may 
Steele  v.  Morrison,  4  Dana,  617;  5  be  cured  by  the  voluntary  appearance 
Hayw.  261  ;  5  Dem.  21,  216.  We  have  of  the  parties  interested.  35  Ala.  295. 
seen  that  claims  upon  an  estate  are  in  Creditors  of  distributees  are  not  par- 
some  States  regularly  filed  for  allowance  ties  in  interest  who  may  object  to  the 
in  court.  Supra,  §  420.  It  is  custo-  representative's  account.  40  Ala.  289. 
mary,  however,  in  New  England  States, 

672 


CHAP.   I.]   ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §   525 

ventory  valuation  of  personal  property  the  first  item  in  a  first 
account,  and  the  balance  from  the  ne.\t  preceding  account  the 
first  item  in  each  succeeding  account ;  schedule  B.  details  the 
payments,  the  losses  upon  the  inventory  valuation,  and  charges. 
The  usual  rules  of  single-entry  bookkeeping  are  followed,  as  to 
entering  dates,  parties,  sums  received  or  paid,  and  the  like.  In 
many  States,  blanks  are  supplied  at  the  probate  registry  for 
the  purposes  of  probate  .accounts.' 

The  proper  number  of  each  administration  account  is  stated 
on  its  face  ;  a  final  account,  moreover,  should  plainly  purport 
to  be  such  ;  ^  but  perhaps  an  account,  appearing  on  its  face  to 
be  a  final  one,  will  be  deemed  such,  although  not  so  styled  in 
the  caption.^ 

§  525-  Authentication  and  Prpof  of  Account  in  American  Pro- 
bate Practice.  —  A  probate  account  is  usually  submitted  on  oath 
by  the  executor  or  administrator.  This  oath,  to  the  effect  that 
the  account  is  just  and  true,  is  administered  in  open  court  by 
the  judge  of  probate,  according  to  the  more  exact  practice; 
current  legislation,  however,  tends  to  facilitate  such  business, 
where  the  judge's  duties  are  onerous,  by  permitting  the  oath 
not  only  to  be  taken  out  of  court,  but  to  be  administered  by 
any  justice  of  the  peace. ■•  Whether  the  oath  to  the  account  is 
administered  by  the  judge  or  not,  his  decree  of  approval  is  gen- 
erally essential,  before  its  formal  allowance. 

Much  of  this  accounting  is  non-contentious  and  formal ;  and 
with  the  rendering  of  his  account,  thus  sworn  to,  together  with 
an  affidavit  that  the  citation  to  interested  parties  has  been  duly 
served,  if  citation  was  ordered,  or,  instead,  their  written  assent, 
the  duty  of  the  executor  or  administrator  is  fulfilled.  But  the 
judge  of  probate  may  at  discretion  scrutinize  the  account,  ask 
proof  as  to  particular  items,  and  ascertain  judicially  that  the 
account  is  correct  before  allowing  it.5  And  if  parties  interested 
appear  and  object  to  its  allowance  as  presented,*'  a  fair  hearing 

'  See  Smith  Probate  Guide,  165.  ^  Especially  if  the  rights  of  infants  or 

^  Bennett  v.  Hannifin,  87  111.  31.  absentees  are  concerned.     Gardner  v. 

^  Stevenson  v.  Phillips,  21  N.  J.  L.  77.  Gardner,  7  Paige,  112. 

*■  See  Gardner  v.  Gardner,  7   Paige,  ^  The  probate  court  may  proceed  to 

112.  determine  whether  a  party  who  objects 

43  673 


§5  25  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

should  be  given  them.  The  court  may  allow,  disallow,  or  order 
the  accountant  to  charge  himself  with  sums  received  which  should 
have  been  entered,  and  practically  require  a  restatement  of  the 
account,  with  proper  corrections,  as  justice  may  require;  though 
as  to  compelling  such  restatement,  independently  of  a  clear  stat- 
ute authority,  the  power  of  a  probate  judge  may  be  questioned.' 
The  executor  or  administrator,  as  various  local  codes  declare, 
may  be  examined  on  oath  before  the  court,  upon  any  specific 
matter  relating  to  his  accounts;^  and  the  party  at  whose  in- 
stance interrogatories  have  been  proposed  to  him  has  a  right 
to  offer  evidence  to  disprove  his  answers.^  As  in  the  old  ec- 
clesiastical practice,  the  executor  or  administrator  is  a  compe- 
tent witness  to  small  charges  ;  "♦  but  larger  items  objected  to  he 
ought  to  support  by  vouchers  or  other  extraneous  proof.^  One 
money  standard,  and  that  the  prevalent  and  legal  one,  ought  to 
regulate  the  whole  accounting.^ 

Hearings  before  a  judge  of  probate  upon  an  administration 
account  are  generally  quite  informal ;  and  issues  are  raised,  and 
questions  put  and  answered,  regardless  of  technical  rules,  the 
judge  seeking  to  elicit  truth  upon  a  summary  hearing,  that  he 

to  an  account  has  any  interest  in  the  made  by  reference  or  otherwise  where 

estate,    notwithstanding    such    party's  the  representative  does  not  correct  the 

sworn  statement  that  he  has  an  interest,  account.     41  Miss.  411. 

Garwood  w.  Garwood,  29  Cal.  514;  Hal-  "Stearns   v.    Brown,    i     Pick.     530; 

leek's  Estate,  49  Cal.  iii.     The  inter-  Hammond  z/.  Hammond,  2  Bland,  306; 

est    should    be    alleged    of    record.     2  44  Mich.  57.     And  see  Ogilvie  v.  Ogil- 

Harring.   273.     And  see  38   La.  Ann.  vie,    i    Bradf.   356.     The  duly  verified 

830.  administration  account  is  prima  facie 

'  The  hearing  before  a  judge  of  pro-  correct.     4  Redf.  (N.  Y.)  265. 

bate  takes  usually  the  course  indicated  ^  Higbee   v.    Bacon,    8     Pick.    484  ; 

in  the  text ;  the  procedure  being  flexi-  Wade  z/.  Lobdell,  4  Cush.  510;  Smith 

ble,  and  the  practical  object  to  secure  a  Prob.  Pract.  183. 

correct  account  and  settlement ;  and  the  ■'Bailey  z^.  Blanchard,   12   Pick.   166. 

representative  himself,   as  well   as  the  Charges  "  not  exceeding  forty  shillings" 

parties  in  interest,  usually  acquiescing  (or,  perhaps,  five  dollars)  may  be  thus 

in  the  decision  of  the  judge.     But  it  is  proved. 

held  that  an  executor  or  administrator  ^  Hall  v.  Hall,  i  Mass.  loi  ;  19  Tex. 

cannot   be  compelled   to    conform    his  317;   12  La.  Ann.  537 ;  2  Dev.  &  B.  Eq. 

return  under  oath  to  the  views  of  the  325 ;  63  Cal.  349. 

court;  that  it  is  for  the  representative  *  See  2  Call,  190;  Magraw  v.  Mo- 
te make  returns,  and  for  the  court  to  Glynn,  26  Cal.  420.  Upon  an  account- 
judge  of  their  effect.  40  Mi.ss.  704.  ing,  payments  made  cannot  be  rejected. 
But   the  court   may  have  a  correction  because   neither  the  accounts   nor  the 

674 


CHAP.   I.]   ACCOUNTS  OF  EXECUTORS  AND  ADMIXISTKATORS.    §    525 

may  decide  correctly  and  quickly.  Oral  testimony  is  generally 
admitted,  and  explanations  are  made  by  the  representative,  often 
without  being  sworn  at  all.  Where,  however,  disputants  insist 
upon  it,  the  rules  of  judicial  investigation  are  more  strictly  ob- 
served ;  the  representative  is  put  upon  oath  as  to  items  ; '  and, 
if  chancery  precedents  be  favored,  those  surcharging  an  account 
should  specify  the  particular  items  objectionable,  and  issues  be 
framed  accordingly.^  But  an  examination  is  not  usually  confined 
to  written  interrogatories  and  answers,  though  it  may  be  thus 
conducted  ;  and  even  should  the  account  be  regularly  audited, 
strict  proof  of  items  may  be  dispensed  with  where,  from  the 
nature  of  the  case,  vouchers  cannot  be  produced.'  In  settling 
an  administration  account,  a  probate  or  equity  court  is  not  usu- 
ally bound  by  technical  rules  of  evidence.'* 


oath  show  to  whom  the  payments  were 
made ;  but  the  testimony  of  the  repre- 
sentative is  admissible  on  this  point. 
Nichols,  Re,  4  Redf.  288. 

'  Rathbone's  Estate,  44  Mich.  57 ; 
Stearns  v.  Brown,  i  Pick.  530. 

^  See  Tanner  57.  Skinner,  11  Bush,  120. 
But  this  rule  is  flexible  as  applied. 
Gardner  v.  Gardner,  7  Paige,  112; 
Buchan  v.  Rintoul,  7c  N.  Y.  i.  An  ac 
count  may  be  restated  before  allow- 
ance, so  as  to  separate  items  improperly 
blended,  and  include  others  which  were 
the  proper  subject  of  a  surcharge.  174 
Penn.  St.  628 ; 

3  Lidderdale  v.  Robinson,  2  Brock. 
1 59.  Vouchers  alone  may  not  be  strictly 
evidence  of  payments  without  authenti- 
cation, but  they  are  accepted  usually  if 
not  objected  to.     2  Dev.  Eq.  137. 

*  Sterrett's  Appeal,  2  Pa.  419;  Ro- 
mig's  Appeal,  84  Penn.  St.  235.  In 
some  States  an  account  in  contentious 
business  is  to  be  made  before  an  auditor 
under  the  probate  court's  direction,  and 
he  will  report.  Hengst's  Appeal,  23 
Penn.  St.  413;  YoWocV,  Re,  3  Redf. 
100;  Rich,  Re,  3  Redf.  177;  Tucker  z/. 
Tucker,  28  N.  J.  Eq.  223.  An  admin- 
istration account,  audited  by  commis- 


sioners, returned  to  court  and  recorded, 
is  not  a  conclusive  settlement  of  the 
estate  ;  either  distributees  or  the  repre- 
sentative himself  may  oppose  its  accept- 
ance. 90  N.  C.  537.  The  representative 
claiming  credit  on  settlement  for  the 
payment  of  a  debt  has  the  burden  of 
proof.  73  Ala.  238.  Where  a  note 
given  by  decedent  is  produced  by  one 
objecting  to  the  account,  the  represen- 
tative may  show  that  the  note  has  been 
paid.  106  Penn.  St.  498.  Objections 
to  the  account  should  be  specific.  74 
Ala.  332  ;  87  Ind.  294. 

When  the  disputed  account  of  an 
executor  or  administrator  is  referred  to 
an  auditor  for  examination,  he  should 
pass  upon  the  objections  filed  to  the: 
accounts  and  no  others ;  the  surrogate  or 
probate  judge  may  allow  furtlier  objec- 
tions to  be  filed;  but,  if  the  rulings  of 
an  auditor  are  appealable  at  all  from 
the  surrogate  or  judge,  the  questions 
must  at  all  events  have  been  first  referred 
to  the  surrogate  or  judge  for  his  deci- 
sion. Boughton  V.  Flint,  74  N.  Y.  476. 
The  probate  court  need  not  refer  mat- 
ters to  an  auditor  where  the  facts  can 
be  conveniently  ascertained  and  deter- 
mined without  doing  so.     Maxwell  v. 


675 


§526 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


§  5  26.  Periodical  Returns  ;  Partial  Accounts  and  the  Final  Ac- 
count. —  Periodical  return  is  part  of  the  American  probate  sys- 
tem ;  a  first  account  being  ordered  within  a  stated  time,  usually 
one  year  from  the  date  of  appointment ;  and  other  accounts  from 
time  to  time,  or,  perhaps,  annually,  until  the  estate  is  fully 
settled.  Hence,  as  estates  may  not  always  be  legally  wound  up 
within  one  year,  a  practical  distinction  between  partial  accounts 
and  the  final  account  which  closes  the  administration.' 

The  rule  is,  that  partial  accounts  of  administration  are,  espe- 
cially if  rendered  without  citation,  prima  facie  correct,  but  noth- 


McClintock,  10  Penn.  St.  237.  And 
see,  as  to  auditor,  1 5  Penn.  St.  403 ; 
23  Penn.  St.  180. 

On  an  accounting,  the  executor  or 
administrator  may  be  required  to  dis- 
close the  assets  of  a  partnership  of 
which  he  and  the  decedent  were  mem- 
bers when  the  latter  died,  although  the 
interest  of  the  decedent  in  the  firm 
is  entirely  unliquidated.  Woodruff  v. 
Woodruff,  17  Abb.  (N.  Y.)  Pr.  165. 

Upon  the  final  accounting,  the  pro- 
bate judge  or  surrogate  has  generally  a 
jurisdiction  to  hear  and  determine  a 
disputed  claim  of  the  executor  or  ad- 
ministrator himself  against  the  estate ; 
and  even  though  the  claim  were  such 
that  equitable  relief  for  enforcing  it 
could  only  be  had  in  chancery,  the  right 
to  retain  out  of  the  assets  of  the  estate 
a  sum  of  money  as  belonging  or  due 
to  him,  brings  the  matter  fairiy  within 
the  province  of  the  tribunal  which 
passes  upon  the  account.  Boughton  7'. 
FUnt,  74  N.  Y.  476 ;  Kyle  v.  Kyle,  67 
N.  Y,  400.  See,  as  to  retainer,  supra, 
§  439.  See  Watson  v.  Watson,  58  Md. 
442;  62  ('al.  186.  Where  the  repre- 
sentative has  by  retainer  satisfied  his 
own  claim  against  the  estate,  the  pro- 
bate court  in  passing  his  account,  has 
jurisdiction  to  inquire  into  the  validity 
of  the  claim,  and  the  legality  of  his  ac- 
tion in  retaining  therefor.  Kinnan  7/. 
Wight,  39  N.  J.  Eq.  501.     The  excess 


of  commissions  allowed  on  an  interme- 
diate account  cannot  be  examined  by 
exceptions  to  a  subsequent  account,  but 
if  excessive  commissions  were  allowed, 
that  fact  may  be  considered  in  fixing 
their  commissions  for  subsequent  ser- 
vices. 36  N.  J.  Eq.  515.  And  see 
next  c. 

'  As  to  requiring  annual  returns,  see 
Wellborn  ?'.  Rogers,  24  Ga.  558.  The 
periods  for  settling  accounts  are  pre- 
scribed in  each  State  by  statute,  and 
accounts  are  usually  to  be  rendered 
within  a  year  from  the  time  of  appoint- 
ment, and  afterwards  as  often  as  once  a 
year  while  the  trust  continues  ;  but  ac- 
counts later  than  the  first  are  sometimes 
left  discretionary  with  the  court.  See 
Mass.  Pub.  Stats,  c.  144  ;  Musick  v- 
Beebe,  17  Kan.  47.  Where  assets  come 
to  the  hands  of  the  executor  or  adminis- 
trator after  a  partial  account,  he  is  bound 
to  render  a  supplementary  account,  in- 
cluding such  assets,  within  a  reasonable 
time  afterwards.  Witman's  Appeal,  28 
Penn.  St.  376 ;  Shaffer's  Appeal,  46 
Penn.  St.  131.  A  representative's  duty 
to  file  annual  or  partial  returns  is  a  stat- 
ute requirement,  and  conditions  not  ex- 
pressed in  the  statute  cannot  be  inter- 
polated. Koon  V.  Munro,  11  S.  C.  139. 
Statutes  set  special  periods  for  account- 
ing where  the  estate  is  insolvent.  Mass. 
Pub.  Stats,  c.  137. 


676 


CHAP.    I.]    ACCOUNTS  OF  EXECUTORS  A  M)  ADMIN  ISTkATOKS.    §    526 

ing  more,  and  bind  no  one  in  interest  ;  and,  on  a  final  settlement, 
they  may  be  so  far  opened  up,  without  any  special  application, 
as  to  correct  errors  therein,  whether  originating  in  fraud  or  mis- 
apprehension, and  although  the  error  was  not  excepted  to  when 
the  partial  account  was  rendered,  nor  when  appealed  from.' 
Former  accounts,  too,  may  be  opened  up  for  correction  of  fraud 
or  mistake,  upon  the  filing  of  subsequent  partial  accounts,  as 
various  local  acts  plainly  sanction.^  A  final  account  has  the 
force  of  a  final  judgment,  and  is  taken  to  be  conclusive,  unless 
appealed  from  or  impeached  for  fraud  ;  while  a  partial  account 
is  only  a  judgment  dc  bene  esse  ;  for  according  to  such  practice, 
the  latter  is  often  rendered  ex  parte,  and  without  notice  to  per- 
sons interested,  and  may  be  considered  as  given  chiefly  for  the 
infcM'mation  of  the  court,  and  the  convenience  of  the  personal 
representative  in  the  management  of  the  estate.^ 

But,  on  the  final  account,  the  general  fairness  of  the  adminis- 
tration comes  up  properly  for  a  final  review.  Such  an  account, 
in  order  to  operate  as  conclusive  upon  all  concerned,  can  only 
be  rendered  upon  due  publication  of  notice  to  creditors  and  all 
persons  interested,  unless  their  assent  is  expressed  ;  the  time  for 


'  Coburn   v.    Loomis,    49    Me.   406 ;     formed  of  the  general  condition  of  tlie 
Clark  V.  Cress,  20  Iowa,   50 ;  Goodwin     estate  while  in  process  of  settlement, 


V.  Goodwin,  48  Ind.  584 ;  58  Iowa,  36 
75  Mo.  204  ;  Picot  V.  Biddle,  35  Mo.  29 
Cavendish   v.  Fleming,    3   Munf.    198 


and  ascertaining  whether  the  represen- 
tative's bond  should  be  increased.  They 
zRoxA  prima  facie  evidence  of  the  facts 


Grant  v.  Hughes,  94  N.  C.  231  ;  37  S.  C.  they  state;  and  it  is  proper  enough  for 
123.  interested  parties  to  object,  when  the 
^  Stayner,  Re,  2,3  Ohio  St.  481  ;  Shep-  partial  account  is  rendered,  to  the  allow- 
ley,  J.,  in  Sturtevant  v.  Tallman,  27  Me.  ance  of  any  item  therein  stated.  Practi- 
85;  Stearns  v.  Stearns,  i  Pick.  157;  cally,  indeed,  the  rendering  of  periodical 
Sumrall  v.  Sumrall,  24  Miss.  258  ;  Steph-  accounts  in  often  found  to  bring  dissen- 
enson  r-.  Stephenson,  3  Hayw.  123 ;  sions  between  the  representative  and 
Mi.x's  Appeal,  35  Conn.  121.  parties  in  interest  to  an  issue  before  the 
3  Musick  7'.  P>eebe,  17  Kan.  47  ;  State  interests  of  the  e.state  have  suffered  too 
z/.  Wilson,  51  Ind.  96;  Sheetz  7/.  Kirt-  far;  while  executors  and  administrators 
ley,  62  Mo.  417;  Liddell  7'.  McVickai,  are  thus  kept  to  a  diligent  and  faithful 
6  Hals.  44  ;  Snodgrass  v.  Snodgrass,  57  cUscharge  of  their  duties,  and  the  judge 
Tenn.  167.  of  probate  may  the  better  pacify  or  pro- 
Annual  and  partial  accounts  are  pe-  tect  legatees  and  kindred  when  they  and 
culiarly  valuable  as  serving  to  show  the  the  representatives  of  the  estate  fail  to 
representative's  liability,  and  for  keep-  harmonize, 
ing  the  court  and  interested  parties  in- 

677 


§5-26 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


rendering-  it  is  when  the  estate  has  been  fully  administered,  un- 
less one's  office  for  some  reason  sooner  expires ;  it  is  properly 
for  the  protection  of  the  representative,  and  as  a  final  adjudica- 
tion of  all  controversies.  On  this  final  account,  errors  and  mis- 
takes in  all  former  accounts  may  and  should  be  corrected,  once 
and  for  all,  and  improper  items  stricken  out ;  and  disputes  of 
charge,  compensation,  and  allowance  finally  determined  ;  nor  is 
the  allowance  of  previous  partial  accounts  without  notice  to  leg- 
atees or  next  of  kin,  conclusive  on  them,  but  they  may  object  on 
the  final  account,  and  the  court  is  bound  to  consider  evidence 
from  them  disproving  or  reducing  former  items.'  Errors  which 
result  not  from  administration  but  the  accounting  are  readily 
rectified,  no  real  harm  resulting.^  This  final  account,  once  exam- 
ined and  approved  by  the  probate  court,  after  due  citation,  and 
not  reversed  on  appeal,  operates  as  a  final  judgment ;  it  con- 
cludes in  general  all  the  parties  interested,  and  cannot  be  re- 
opened or  annulled  in  any  court,  except  it  be  by  direct  proceedings 
in  probate,  or  perhaps  in  chancery,  for  fraud  or  manifest  error.' 


'Mix's  Appeal,  35  Conn.  121;  Bra- 
zeale  7<.  Brazeale,  9  Ala.  491  ;  Collins  -'. 
Tilton,  58  Ind.  374.  The  fact  that  al- 
lowance had  been  made  by  a  former 
judge  of  the  court  by  a  mere  approval, 
without  a  hearing  or  citation,  does  not 
affect  the  right  to  re-open  before  the 
subsequent  judge.  Collins  v.  Tilton,  ib. 
And  see  Bantz  v.  Bantz,  52  Md.6S6.  It 
is  no  ground  for  not  correcting  an  error 
that  the  item  had  been  allowed  upon 
appeal  from  the  former  and  partial  set- 
tlement by  a  person  interested  in  other 
items,  but  not  in  this.  Clement's  Appeal, 
49  Conn.  519. 

^  See  Little  v.  Little,  161  Ma.ss.  188. 

'Austin  V.  Lamar,  23  Miss.  1S9; 
Brick's  Estate,  15  Abb.  (N.  V.)  Pr.  12. 
As  to  appeal,  etc..  see  §  530, /^;.r/.  See, 
as  to  the  analogous  case  of  guardianship 
accounts,  Schoul.  Dom.  Rel.  3d  ed.  §  372, 
and  cases  cited.  And  see  Mayo  v. 
Clancy,  57  Miss.  674  ;  Seawall  v.  Buck- 
ley, 54  Ala.  592;  Musick  -■.  Beebe,  17 
Kan.  47  ;   105  Iowa.  564;   144   Mo.  258. 


A  final  account  allowed  is  voidable  at 
the  election  of  one  not  duly  cited  as  en- 
titled nor  brought  into  the  account.  54 
Miss.  700.  In  New  York  practice,  a 
surrogate  may  make  an  order  opening  a 
final  accounting  of  executors  or  admin- 
istrators for  re-examination,  at  least  to 
the  extent  of  correcting  specified  errors 
apparent  on  the  face  of  the  account ; 
but  the  power  should  be  exercised  only 
in  rare  instances  and  with  great  caution. 
Decker  v.  Elwood,  i  Thomp.  &  C. 
(N.  Y.)  48 ;  Strong  v.  Strong,  3  Redf. 
477.  Only  a  court  of  equity,  and  not  a 
probate  court,  can  open  a  settled  account 
in  some  States.  Harris  v.  Stilwell,  4 
S.  C.  19.  Though  such  is  not  the  rule. 
A  final  accounting  does  not  bar  proceed- 
ings for  a  distinct  trust.  5  Hun,  16  ;  4 
Redf.  180.  The  final  settlement  does 
not  preclude  further  inquiry  in  regard 
to  the  assets  of  the  estate  in  the  hands 
of  the  representative  not  accounted  for 
nor  passed  upon.  McAfee  i'.  Phillips, 
25  Ohio   St.   374.     Cf  16  Ohio  St.  274. 


678 


CHAP.   I.]    ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §   5  26 


The  broad  distinction  between  partial  and  final  accounts,  is 
not,  however,  universally  approved  in  American  probate  practice 
of  late  years.  Thus,  in  Pennsylvania,  where  it  was  formerly 
usual  to  admit  exceptions,  when  a  final  account  was  filed,  to  that 
or  to  any  previous  probate  account,  all  partial  accounts  arc,  under 
later  legislation,  rendered,  when  confirmed  absolutely  and  upon 
due  consideration,  and  without  an  appeal,  final  and  conclusive,  in 
regard  to  all  that  they  contain,'  though  not  as  to  what  may  have 
been  reserved  for  a  future  account.^  In  Massachusetts,  too,  and 
some  other  States,  the  policy  is  manifestly  to  discourage,  at  all 
events,  the  reopening  of  disputes  which  were  actually  heard  and 
determined  on  one  account,  when  later  accounts  are  exhibited.^ 
But,  in  order  to  give  a  conclusiveness  to  partial  accounts,  it 
appears  proper  not  only  that  no  appeal  should  be  taken,  but  also 


But  it  concludes  as  against  the  repre- 
sentative, that  what  was  charged  in  the 
accounting  as  assets  was  such.  Mc- 
Donald 7a  McDonald,  50  Ala.  26.  And 
a  final  account  regularly  allowed  is  pre- 
sumed to  embrace  everything  which 
was  the  proper  subject  of  inquiry. 
Brown  v.  Brown,  53  Barb.  217.  See 
Davis  V.  Cowden,  20  Pick.  510;  Sever 
V.  Russell,  4  Cush.  518. 

As  to  opening  and  reviewing  probate 
settlements  in  a  court  of  chancery  to 
correct  mistakes  and  afford  relief,  see, 
in  detail,  U.  S.  Digest,  First  Series,  E.x- 
ecutors  and  Administrators,  4146-4250. 
There  are  various  recent  State  enact- 
ments which  relate  to  this  subject,  their 
tendency  being,  however,  to  conclude 
all  such  controversies  in  the  probate 
court  and  upon  appeal  in  regular  course. 
See,  on  this  point,  30  Ark.  66 ;  34  Ark. 
117;  50  Ala.  319  ;  64  Ind.  79.  But  cf. 
14  Fed.   R.  93.     One  who   retains  the 


infant  one  year  from  the  time  of  at- 
taining majority;  also  N.  Y.  Code,  con- 
ferring power  to  reopen  in  cases  of 
fraud,  newly  discovered  evidence,  cler- 
ical error,  or  other  sufficient  cause.  Til- 
den,  Re,  198  N.  Y.  434.  And  see  Riley 
V.  Norman,  39  Ark.  158.  But  a  final 
settlement  is  generally  conclusive,  apart 
from  fraud,  etc.,  where  infant  distri- 
butees in  interest  are  represented  by  a 
guardian  ad  litem.  Trawick  v.  Travvick, 
67  Ala.  271.  Consult  local  codes  on 
this  point. 

'  Rhoad's  Appeal,  39  Penn.  St.  186. 
The  confirmation  of  a  partial  adminis- 
tration account  is  conclusive  as  to  mat- 
ters embraced  therein.  Fross's  Appeal, 
105  Penn.  St.  258.  A  partial  account 
may  be  made  the  subject  of  probate  in- 
vestigation at  discretion.     2  Dem.  289. 

^  Shindel's  Appeal,  57  Penn.  St.  43. 
As,  e.g.,  on  a  later  account  the  represent- 
ative may  be  charged  with  money  re- 


benefits  is  not   competent  to   allege  a     ceived  by  him  before  the  confirmation 


fraud  in  the  accounts.  81  111.  571.  Nor 
will  equity  set  aside  a  settlement  because 
of  illegal  allowances  to  the  representa- 
tive where  there  is  no  proof  that  they 
were  obtained  by  fraud  or  misrepresen- 
tation. 34  Ark.  63;  54  Mo.  200;  67 
Mo.  247.     See  as  to  application  by  an 


of  the  preceding  account,  and  not  ac- 
counted for.     lb. 

3  Mass.  Pub.  Stats,  c.  144,  §  9;  Smith 
V.  Dutton,  4  Shepley,  308;  Cummings 
7/.  Cummings,  128  Mass.  532;  Wiggin 
V.  Swett,  6  Met.  194. 


679 


§    52/  EXECUTORS    AND    ADMINISTRATORS.  [PART   VII. 

that  the  account  should  have  been  allowed  after  the  usual  cita- 
tion to  parties  interested,  or  their  appearance  or  waiver  of  notice  ; 
for,  as  in  a  final  account,  the  decree  of  allowance  on  a  partial 
account  ought  not  to  bind  those  who  were  not  made  parties  to 
the  accounting.' 

§  527.  Settlement  upon  a  Final  Accounting;  Distribution,  etc. 
—  The  rendering  of  a  final  account  to  the  probate  judge  or  sur- 
rogate appears  to  be,  strictly  speaking,  a  proceeding  distinct 
from  the  settlement  thereof ;  that  is  to  say,  the  executor  or  ad- 
ministrator sets  forth  in  his  accounts  the  true  condition  of  the 
trust,  and  of  his  administration,  without  bringing  into  his  state- 
ment the  payments  made  to  any  of  the  distributees  or  residuary 
legatees  on  account.  Usually,  in  our  practice,  a  decedent's 
estate  is  closed  in  the  probate  accounting ;  payments  made  in 
true  proportion  to  all  proper  parties  being  thus  exhibited,  with- 
out the  formality  of  a  further  decree,  as  for  distribution.  But, 
when  this  course  is  pursued,  the  distribution  statement  or  sched- 
ule should  be  kept  distinct  ;  for  the  probate  accounting,  in  theory 
and  apart  from  local  code  or  practice,  settles  nothing  but  the 
basis  upon  which  distribution  may  afterwards  be  made   in  a 

^  Supra,  §523;  Crawford  7'.  Redus,  the  party  objecting  to  specify  in  writing 
54  Miss.  700.  Mass.  Pub.  Stats,  c.  144,  the  items  objected  to;  for  then,  the  ac- 
§  9,  expressly  provides  that  when  such  count  being  once  settled,  the  particular 
account  is  settled  "  in  the  absence  of  a  items  disputed  and  determined  will  be 
person  adversely  interested,  and  without  shown  by  the  record.  A  Massachusetts 
notice  to  him,"  such  account  may  be  statute  provides  that,  upon  the  settle- 
opened  on  his  application  at  any  time  ment  of  an  account,  all  former  accounts 
wthin  six  months  after  the  settlement  rendered  in  the  course  of  settling  the 
thereof.  same  e.state  may  be  so  far  opened  as  to 

An  executor  or  administrator  having  correct  a  mistake  or  error  therein;   but 

been  surcharged  or  falsified  on  excep-  that  a  matter  which  has  been  previou.sly 

tions  to  his  admini.stration,   all  parties  heard    and    determined    by   the    court, 

interested  in  the  surplus  are  entitled  to  shall  not,  without  leave  of  the  court,  be 

participate  in  the  balance  as  finally  as-  again  brought  in  question  by  any  of  the 

certained,  in    due    proportion,    though  di.sputants.     Mass.   Pub.   Stats,  c.  144. 

some  of  them  filed  no  exceptions  to  the  §  9  ;  Cummings?-.  Cummings,  128  Mass. 

account.     Charlton's  Appeal,  34  Penn.  532;  Wiggin    v.    Swett,    6     Met.     19.1, 

St.  437.     It   is  prudent,  when  the  ac-  And  this  is  also  the  Ohio  rule.     Watts 

countant  finds  his  account  disputed  in  7'.  Watts,  38  Ohio  St.  480. 
important  respects,  for  him  to  request 

680 


CHAP.    I.]    ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §    527 

proper  tribunal,  and  ascertains  what   balance,  if  any,  is  left  for 
that  purpose.' 

In  some  States,  therefore,  the  decree  made  upon  an  adminis- 
trator's final  accounting  determines  simply  the  amounts  received 
and  paid  out  by  the  representative,  and  the  balance  due  from 
him  to,  or  to  him  from,  the  estate  ;  and  a  decree  of  distribution, 
settling  the  rights  of  residuary  legatees  or  distributees,  is  after- 
wards in  order.^  The  distribution  of  intestate  estate  lies  pecu- 
liarly within  the  province  and  jurisdiction  of  American  probate 
courts  ;  and  local  statutes  define  the  method  by  which  the  ad- 
ministrator or  any  one  of  the  distributees,  may,  on  application  to 
ihe  probate  court,  obtain  an  appropriate  decree.^ 


'  See  Ake's  Appeal,  21  Penn.  St.  320 ; 
Smith  V.  Van  Kuren,  i  Barb.  Ch.  473 ; 
Tappan  v.  Tappan,  30  N.  H.  50  ;  Fleece 
V.  Jones,  71  Ind.  340;  Arnold  v.  Smith, 
14  R.  I.  217.  Where  the  distributees 
or  residuary  parties  in  interest  are 
clearly  known,  the  representative  is 
practically  safe  in  settling  with  them  on 
their  several  receipts  for  their  respective 
proportions,  and  rendering  his  final 
account  as  upon  such  a  distribution, 
thereby  dispensing  with  formalities  and 
needless  delay.  Legacies,  in  general, 
like  creditors'  claims,  are  paid  upon 
proper  vouchers. 

The  words  "  final  settlement "  in  a 
statute  may  be  construed  not  to  signify 
the  mere  ascertainment  of  the  final  cash 
balance  in  the  hands  of  the  executor  or 
administrator.  A  payment  of  that  bal- 
ance is  also  included,  so  that  nothing 
shall  remain  to  be  done  by  him  in  his 
fiduciary  character  to  complete  the  exe- 
cution of  the  trust.  Dufour  v.  Dufour, 
28  Ind.  421. 

It  is  irregiilar  practice  to  petition  for 
an  account  and  for  distribution  together. 
II  Phila.  43. 

^  Johnson  v.  Richards,  5  Thomp.  & 
C.  (N.  Y.)  654;  15  N.  J.  L.  92;  7  Bax- 
ter, 406.  A  formal  decree  may  be  a 
needful  preliminary  to  suing  on  the  ad- 
ministrator's official  bond. 

68 


^  The  decree  of  distribution,  which 
is  founded  upon  the  final  balance  shown 
by  the  accounting,  specifies  the  names 
of  persons  who  are  entitled  to  share  in 
the  estate  and  the  amount  payable  to 
each.  Loring  v.  Steineman,  i  Met. 
204  ;  Smith  Prob.  Pract.  196.  A  decree 
in  favor  of  a  distributee  is  conclusive  as 
to  amount,  allowing  for  all  previous  ad- 
vancements. Cousins  -'.  Jackson,  49 
Ala.  236. 

After  an  administrator  has  made  dis- 
tribution without  judicial  direction,  he  is 
personally  liable,  if  others  entitled  to 
distribution  appear  of  whose  existence 
he  had  no  knowledge.     2  Call  (Va.)  95. 

In  some  States  an  order  of  distri- 
bution is  imperative.  19  La.  Ann.  97. 
Accounts,  with  items  showing  partial 
and  unequal  payments  to  distributees, 
do  not  supply  the  correct  balance  upon 
which  distribution  is  to  be  made.  See 
53  Ga-  282. 

The  notice  requisite  for  a  decree  may 
be  prescribed  by  statute,  otherwise  the 
notice  is  such  as  the  court  in  its  discre- 
tion shall  deem  proper,  i  Met.  204. 
See  49  Wis.  592  ;  60  111.  27.  The  pro- 
bate court  has  no  authority  to  make  an 
order  for  distribution  to  the  as.signee  of 
a  distributee's  share.  Knowlton  v. 
Johnson,  46  Me.  489 ;  Holcomb  7>. 
Sherwood,  20  Conn.  418;  Portevant  v. 


527 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VI  (. 


But,  as  to  testate  estates,  a  probate  court  has  no  inherent 
jurisdiction  to  decide  who  are  entitled  as  legatees  under  the  will; 
nor  can  it,  in  the  absence  of  some  enabling  act,  decree  to  whom, 
or  at  what  time,  legacies,  or  the  residuary  fund,  shall  be  paid." 
Agreeably,  however,  to  the  jurisdiction  conferred  upon  probate 
courts  in  various  States,  this  court,  subject  to  the  usual  appeal, 
may  settle  all  questions  relative  to  legacies  ;  and  accordingly, 
where  the  construction  of  a  will  is  necessary  to  determine  ques- 
tions arising  on  the  account  of  administration,  the  court  of  pro- 
bate jurisdiction  in  such  States  may  pass  upon  the  construction 
of  the  will,  for  this  attaches  as  incidental  to  the  accounting.^ 
Decrees  which  confirm  the  accounts  of  executors  or  administra- 
tors are  not  to  be  opened  and  re-examined,  at  all  events,  where 
the  balance  thereby  found  to  be  due  has,  in  the  meantime,  been 
actually  paid  and  discharged. ^  But  various  local  codes  provide 
for  equitable  relief,  whether  by  petition  in  the  probate  court,  or 
otherwise,  so  as  to  reopen  afterwards  a  probate  settlement  upon 
a  proper  showing  of  mistake  or  fraud,  and  by  a  direct  attack 
upon  that  settlement. ■♦ 


Neylans,  38  Miss.  104.  And  it  is  no 
valid  objection  to  a  decree  of  distribu- 
tion that  it  was  made  on  its  face  in  favor 
of  parties  who  were  not  applicants  for 
the  decree,  or  whose  shares  had  been 
satisfied  or  released.  Sayrez-.  Sayre,  16 
N.  J.  Eq.  505.  Nor  should  the  admin- 
istrator be  thus  decreed  to  apply  the  dis- 
tributee's share  to  a  debt  due  to  the 
administrator  personally.  13  Ala.  91  ; 
3  Grant  (Pa.)  109;  25  Miss.  252.  Nor 
to  make  deduction  from  the  share  of 
any  one  on  account  of  a  debt  he  owes 
to  the  estate.  17  Mass.  81.  But  such 
equities  may  be  regarded  in  the  course 
of  compliance  with  a  decree  of  distribu- 
tion. See  6  Ired.  Eq.  341  ;  2  Barb. 
Ch.  533 ;  29  Penn.  St.  208  ;  3  Cranch, 
C.  C.  61.  And  it  would  appear  that  a 
botia  fide  payment  made  under  the 
decree  of  distribution  to  the  attorney  in 
fact,  or  actual  assignee  of  the  distribu- 
tee named  therein,  is  a  compliance  with 
the   order.     Marshall    v.    Hitchcock,  3 

68 


Redf.  (N.  Y.)  461.  Setting  aside  on  ap- 
peal a  decree  of  distribution  does  not 
necessitate  setting  aside  the  final  ac- 
count.    90  Wis.  480. 

'  Smith  V.  Lambert,  30  Me.  137 ; 
Cowdin  V.  Perry,  1 1  Pick.  503.  Lega- 
cies in  many  States  may  be  sued  for  and 
recovered  at  common  law.  Far\vell  v. 
Jacobs,  4  Mass.  634  ;  Smith  v.  Lambert, 
30  Me.  137.  Beyond  this,  the  subject 
is  more  especially  one  of  chancery  juris- 
diction, and  the  probate  records  are  not 
conclusive  of  the  rights  of  such  parties, 
though  doubtless  important  evidence. 
But  statutes  may  affect  this  question, 
enlarging  the  powers  of  a  probate  court 
to  that  end.  Sandford  v.  Thorpe,  45 
Conn.  241. 

-  Purdy  V.  Hayt,  92  N.  V.  446. 

^  Lehr's  Appeal,  98  Penn.  St.  25. 

*  See  Arnold  v.  Spates,  65  Iowa,  570; 
various  local  codes ;  Brandon  v.  Brown, 
106  111.  519. 


CHAP.   I.]    ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §    528 

§  528.    Conclusiveness  of    the  Final    Settlement   in   the  Probate 

Court.  —  The  final  settlement  of  an  executor  or  administrator 
with  the  probate  court  is  conclusive,  operating  as  the  judgment 
of  a  court  of  competent  authority,  with  jurisdiction  of  the  subject- 
matter  and  of  the  person,  and  cannot  be  called  in  question,  ex- 
cept by  a  direct  proceeding,  such  as  appeal  or  writ  of  error ;  ' 
and  only  in  the  probate  court  when  impeached  for  fraud  or 
manifest  error ;  though,  if  the  proceedings  in  that  court  were 
such  that  they  may  be  treated  as  a  nullity  on  account  of  fraud, 
the  executor  or  administrator  may  be  cited  to  account  there 
anew.^  The  probate  settlement  remains  conclusive  evidence 
not  only  of  the  fact  of  receipts  and  payments,  as  specified,  but 
of  the  validity  of  those  receipts  and  payments ;  ^  nor  can  the 
decree  of  the  probate  court,  duly  allowing  the  final  account  of 
the  representative,  be  collaterally  impeached  ;  as  in  an  action  at 
law  against  him,  upon  a  claim  against  the  deceased.'* 

While  a  decree  of  the  probate  court,  settling  an  executor's 
or  administrator's  final  account,  partakes  of  the  nature  of  a  final 
judgment,  its  conclusiveness  is  nevertheless  restricted  to  the 
matters  involved,  and  the  items,  together  with  the  surplus,  as 
passed  upon  and  shown  of  record. 5     Nor  is  the  decree  of  distri- 

'  Caldwell  v.  Lockridge,  9  Mo.  362  ;  by  the  probate  court,  that  court  should 

Barton  v.  Barton,  35   Mo.  158;  Austin  not  reopen  the  account   upon  his  suc- 

V.  Lamar,  23  Miss.  189;  Brick's  Estate,  cessor's  petition  upon  any  ex  parte  or 

15  Abb.   (N.  Y.)   Pr.   12;  Smith  Prob.  insufficient    charge   that    the  surviving 

Pract.  183.  partners    induced    the    settlement    by 

^  Davis   V.    Cowden,    20    Pick.    510;  fraud.     Blake  ».  Ward,  157  Mass.  94. 

supra,  §  526,  note;  Decker  v.  Elwood,  ^  A  balance  found  due  upon  formal 

1  Thomp.  &  C.  48.  Thus  there  should  accounting  may  in  some  cases  be  a  cash 
be  due  citation  to  parties  interested  on  balance;  and  a  careful  executor  or  ad- 
such  account  in  order  to  operate  con-  ministrator  will  take  heed  that  items  of 
clusively.     144  Mo.  509.  doubtful  value,  which  may  affect  a  just 

3  I   Hoffm.  202  ;  Burd  v.   McGregor,     cash  balance  for  distribution,  are  duly 

2  Grant,  353;  52  Cal.  403.  stated  at  the  final  hearing,  and  weighed 
'' Parcher  v.   Bussell,    11    Gush.    107;     by  the  court.     But  the  balance,  as  found 

Harlow  v.   Harlow,  65   Me.  448 ;  San-  on  such  accounting,  is  in  strict  truth  a 

ders  V.   Loy,  61    Ind.  298;    §  526;  13  balance,  not  of  money,  but  of  the  estate 

Lea,  728.     Where  the  administrator  of  undisposed  of  remaining  for  distribu- 

a  deceased  partner  in  a  firm  has  settled  tion,  and  the  schedules  will  frequently 

with  the  surviving  partners,  and  his  ac-  show  that  this  balance  is  made  up  of 

count,  including  the  account    received  various  items  of  personal  property  not 

from  such  settlement,  has  been  allowed  reduced  to  cash,  which,  at  their  stated 

683 


S  3 


28 


KXPXUTORS    AND    ADMINISTRATORS.  [PART  VII. 


bution,  as  to  the  balance  shown  by  the  administration  accounts, 
a  payment.'  But  it  is  to  be  assumed  that  the  parties  in  inter- 
est were  all  cited,  or  had  otherwise  due  opportunity  to  scrutinize 
or  contest  the  account. - 

An  executor  or  administrator  whose  accounts  have  once  been 
settled  will  not  be  ordered  to  account  further  because  of  the 
existence  of  possible  assets  not  within  his  control,  but  which, 
after  a  third  party  shall  have  acted,  may  come  to  his  hands.^ 
And  the  reasonable  presumption  from  a  probate  decree  which 
judicially  settles  the  representative's  accounts,  where  all  the 
parties  interested  have  been  cited,  is  that  the  account  was  cor- 
rect, and  all  the  assets  have  been  accounted  for.  A  further  ac- 
counting, therefore,  should  only  be  ordered  when  it  appears 
clearly  that  there  are  other  matters  not  embraced  in  the  former 
account,  for  which  the  representative  is  responsible,  and  has  not 
accounted.-* 


valuation,  the  representative  stands 
ready  to  transfer.  Where,  therefore, 
the  representative  finds  himself  unable 
to  use  the  assets  upon  a  cash  valuation, 
he  should  apply  to  the  probate  court 
for  corresponding  relief ;  and  the  order 
of  distribution  may  be  made  out  or 
amended  in  conformity  to  the  facts, 
and  as  essential  justice  requires.  But, 
after  the  time  is  past  for  the  represen- 
tative to  distribute  the  surplus  to  those 
entitled  thereto,  and  such  distribution 
may  be  assumed  to  have  taken  place, 
he  is  no  longer  concerned  in  asking  re- 
lief of  this  character.  Sellero's  Appeal, 
36  Conn.  186.  That  one  may  be  cited 
to  account  for  what  does  not  appear  on 
his  accounts,  see  Flanders  ?•.  Lane,  54 
N.  H.  390;  88  Md.  151.  See  as  to 
order  discharging  the  representative,  86 
Tex.  207. 

'  It  is  not  a  payment  so  as  to  dis- 
charge the  executor  or  administrator, 
nor  is  it  a  payment  so  as  to  exonerate 
the  fund  distributable.  The  decree 
gives  to  the  distributee  a  remedy  against 

684 


the  executor  or  administrator  personally 
for  his  proportion  of  the  fund  found  to 
be  in  the  latter's  hands,  but  this  does 
not  impair  his  remedy  against  the  fund 
itself.  Nothing  short  of  actual  pay- 
ment, or  some  act  of  the  distributee  to 
its  prejudice,  ■will  exonerate  the  trust 
fund  from  the  distributee's  claim. 
Brown,  J.,  in  Clapp  r'.  Meserole,  38 
Barb.  661.  And  see,  as  to  the  form  of 
such  decree  of  distribution,  McCracken 
V.  Graham,  14  Penn.  St.  209. 

As  to  the  effect  of  a  settlement  of  the 
residue  out  of  court,  after  a  partial  set- 
tlement in  court,  see  27  Ohio  St.  159. 

^  As  to  acquiescence  of  a  guardian 
not  necessarily  concluding  the  minors, 
see  148  Mass.  434. 

^Soutter,  Re,  105  N.  Y.  514.  And 
see  as  to  an  accounting  for  additional 
a.ssets  after  a  partial  accounting;  which 
was  in  the  court's  discretion  until  it 
could  be  made  a  final  accounting,  3 
Dem.  414. 

"  Soutter,  Re,  ib. 


CHAP.  I.]  ACCOUNTS  OF  KXECUTOKS  AND  ADMIMSTKAIORS.  §  S  30 

§  529-  Perpetuating  Evidence  of  Distribution  and  Procuring  a 
Final  Discharge;  Effect,  etc. —  It  is  provided  expressly  in  various 
States,  that  the  executor  or  administrator  shall  have  his  final 
discharge,  and  may  perpetuate  the  evidence  of  his  payments  or 
distribution  of  the  surplus,  as  of  record.  The  usual  course  is 
for  him  to  return  the  court's  decree  of  distribution,  with  in- 
dorsements, showing  full  payments  made  under  it,  or  within  a 
specified  time  to  present  what  is  in  substance  a  final  account, 
exhibiting  the  distribution  of  the  balance  for  which  he  was  ac- 
countable to  the  parties  entitled."  Unclaimed  moneys,  which 
the  court  has  ordered  paid  over,  may  be  placed  on  deposit  with 
the  judge,  or  in  the  public  treasury,  according  as  local  enact- 
ments prescribe,  thereby  discharging  the  executor  or  adminis- 
trator, and  his  sureties,  from  all  further  responsibility  for  the 
funds.- 

In  some  States  it  appears  to  be  the  practice  of  the  probate 
court  to  enter  a  judgment  of  dismissal  by  way  of  discharging  lia- 
bility on  the  part  of  the  personal  representative  ;  ^  but  an  order 
of  discharge  upon  a  final  account  will  not  be  regarded  as  a  final 
settlement,  if  assets  of  the  estate  actually  remain  unadminis- 
tered  in  the  hands  of  the  fiduciary.  For  though  an  executor 
or  administrator  may  die  or  be  regularly  removed  or  permitted 
to  resign,  his  authority  continues  otherwise  until  the  estate  is 
fully  settled  ;  and  there  is  no  successor  without  due  credentials 
upon  a  proper  vacancy. ■♦ 

§  530-  Appellate  Jurisdiction  as  to  Probate  Accounting.  —  Ap- 
pellate jurisdiction  from  our  probate  tribunals  is  carefully  exer- 

'  The  Massachusetts  statute  provides  shall  be  allowed  as  his  final  discharge, 

that  when  an  executor  or  administrator  and  ordered  to  be  recorded.     vSuch  dis- 

has  made  or  delivered  over  to  the  per-  charge  shall  forever  exonerate  the  party 

sons  entitled  thereto  the  money  or  other  and  his  sureties  from  all  liability  under 

property  in  his  hands,  as  required  by  a  such  decree,  unless  his  account  is  im- 

decree  of   the   probate  court,  he  may  peached  for  fraud   or   manifest    error. 

perpetuate  the  evidence  thereof  by  pre-  Mass.  Pnh.  Stats,  c.  144,  §  12. 

senting  to  such  court,  within  one  year  ^  Mass.  Pub.  Stats,  c.  141,  §  16. 

after  the  decree  is  made,  an  account  of  ^18  Ga.  346  ;   10  Ind.  528.     But,  if  a 

such  payments,  or  of  the  delivery  over  settlement   is   reopened,   all    concerned 

of  such  property;  which  account,  being  may  have  the  benefit.     56  Ga.  297. 

proved  to  the  satisfaction  of  the  court,  •*  37   Iowa,  684;   Weyer  v.   Watt,  48 

and  verified  by  the  oath  of  the  party,  Ohio  St.  545. 

685 


§    5  30  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

cised  in  most  States,  as  respects  the  probate  accounting  just 
set  forth.  And,  upon  appellate  proceedings,  the  supreme  court 
declines  to  act  as  if  entertaining  an  original  jurisdiction  over 
the  account.  For,  as  it  is  said,  the  court  of  probate  can  only 
be  deprived  of  its  statute  jurisdiction  for  the  settlement  of  a 
personal  representative's  accounts  by  some  process  or  course  of 
proceeding  which  would  legally  remove  the  settlement  to  an- 
other tribunal.  And,  hence,  probate  jurisdiction  remains,  al- 
though the  personal  representative,  who  had  before  been  cited 
to  settle  his  accounts,  had  neglected  to  do  so,  and  leave  had 
been  granted  to  bring  a  suit  upon  his  bond ;  no  suit  having 
been  commenced.'  Nor  will  the  supreme  court,  as  a  court  of 
chancery,  resettle  an  administration  account  alleged  to  have 
been  fraudulently  settled  in  the  probate  court.^ 

So,  too,  it  is  held  that  former  accounts  from  the  allowance 
of  which  no  appeal  was  taken,  and  the  matters  passed  upon 
in  them,  are  not  subject  to  a  revision  and  readjustment  upon 
an  appeal  from  the  allowance  of  a  later  account  in  which  the 
same  question  was  not  before  the  probate  judge  for  consid- 
eration.3 

Where  a  mistake  is  made  in  the  settlement  of  a  probate  ac- 
count, the  course  is  to  apply  to  the  judge  of  probate  for  its  cor- 
rection, or  to  state  the  amount  claimed  in  a  new  account ;  unless, 

'  Sturtevant  v.  Tallman,   27    Me.   78.  than  as  an  appellate  tribunal  with  refer- 

Appeal  does  not  lie  from  the  refusal  of  ence  to  probate  accounts,  construes  the 

an   account   informally   presented.     50  latest  legislation,  not  only  as  modifying 

^ja.  -3Q.  the  former  rule  of  conclusiveness,  but 

-  Jennison  v.   Hapgood,   7    Pick,    i  ;  so    that,  without    any   formal    petition 

Sever  z/.  Russell,  4   Cush.   513.     As  to  alleging   mistake   or    error,    objections 

the  States  where  liberal  chancery  powers  made  to  allowing  a  later  probate  ac- 

are  asserted    by  way   of  a   concurrent  count  may  amount  substantially  to  an 

jurisdiction  with  probate  tribunals,  see  application  to  have  the  former  accounts 

supra,  §  522.     A  judgment  of  the  pro-  reopened;  and  sustains  a  reopening  on 

bate  court  may  be  impeached  for  fraud  in  appeal,   although   an  appeal  from    the 

a  court  of  equity,  in  a  proper  case.     An-  former  account   was  taken  to  the  su- 

derson  z^.  Anderson,  178  111.   160.     See  preme    court     and    there    determined, 

further,  §  160.  Blake  ?■.  Pegram,  109  Mass.  541.     And 

3  McLoon  V.  Spaulding,  62  Me.  315  ;  see  Williams  v.  Petticrew,  62  Mo.  460; 

27  Me.  78;  49  Me.  406,  561.  Seymour   v.    Seymour,    67     Mo.    303; 

But,  in  Massachusetts,  the  supreme  Sherman  v.  Chace,  9  R.  I.  166. 
court,  while  disclaiming  to  act  otherwise 

686 


CHAP.    I.]    ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §    5^1 

when  the  mistake  is  discovered,  the  party  has  a  right  of  appeal 
to  the  supreme  tribunal,  and  may  there  have  it  corrected. '  When 
the  account  of  the  representative  has  been  allowed  by  the  pro- 
bate judge,  and  no  appeal  is  taken,  it  cannot  be  revised  above  ; 
and,  under  such  circumstances,  the  probate  judge's  decision  that 
no  mistake  has  been  made,  concludes  the  controversy.^  If  the 
probate  court  reopens,  or  refuses  to  reopen,  a  final  accounting 
in  a  proper  case,  there  lies  a  direct  remedy  by  appeal.^ 

§53^-  Rendering  Accounts  in  Case  of  Death,  Resignation, 
Removal,  etc.,  of  Representative.  —  American  statutes  provide 
explicitly  for  the  rendering  of  probate  accounts  in  case  of  a 
vacancy  in  the  office.  Thus,  when  one  of  two  or  more  joint 
executors  or  administrators  dies,  resigns,  or  is  removed  before 
the  administration  is  completed,  the  account  is  rendered  by  the 
survivor  or  survivors."*  And  when  a  representative  dies,  not 
having  settled  his  sole  account,  a  final  account  should  be  rendered 
by  his  own  executor  or  administrator ;  and  it  has  been  held, 
that  it  may  be  settled  by  the  administrator  of  one  of  his  sureties, 
for  the  protection  of  the  bond  ;s  since,  for  a  deficit  beyond  the 
actual  assets  to  be  administered  upon,  the  sureties  of  a  deceased 
executor  or  administrator  who  proves  a  defaulter  in  his  trust, 
are  answerable,  and  not  the  deceased  defaulter's  own  representa- 
tives.'' 

Statutes  provide  for  the  closing  of  accounts  by  a  representa- 
tive who  resigns,  or  is  discharged  from  his  trust.  Thus,  it  is 
declared,  that  an  executor  or  administrator  shall  not  be  permitted 
to  resign  without  first  settling  his  accounts ;  and,  on  such  ren- 
dering, the  court  should  have  the  account  carefully  examined 

'  Stetson  V.  Bass,  9  Pick.  27  ;  Coburn  (N.  Y.)  457  ;  3   Dem.  236.     In  case  of 

V.  Loomis,  49  Me.  406.  the  representative's  death  pending  pro- 

^  Coburn   v.    Loomis,    49    Me.    406;  ceedings  for  the  settlement  of  his  ac- 

Arnold  v.  Mower,  ib.  561.  counts,  the  proceedings  abate,  and  his 

^  Githens  v.  Good-win,  32   N.  J.  Eq.  own  representative  must  account  anew. 

286.     As  to  reopening  a  settled  account  3  Dem.  236. 

by  proceedings  in  the  probate  court,  see  ^  Curtis  v.  Bailey,  i  Pick.  199. 

supra,  §  526.  ^  See  supra,  §  146.     But  see  2   Pen. 

"■  Mass.  Pub.  Stats,  c.   144;  44   Hun  (N.  J.)  L.  562. 

687 


§   5  32  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

and  approved  like  any  other  final  account.'  But,  without  ap- 
propriate legislation,  the  probate  court  cannot,  perhaps,  order 
an  account  from  one  whose  resignation  has  already  been  ac- 
cepted.^ The  final  probate  decree,  on  settlement  of  the  accounts 
of  a  removed  representative,  will  conclude  his  sureties,^  who, 
together  with  himself,  are  answerable  for  any  defalcation  in  the 
trust. 

It  is  not  to  be  inferred,  however,  that  a  final  settlement  upon 
the  accounts  of  a  representative  who  has  died,  resigned,  or  been 
removed,  while  in  the  exercise  of  his  functions,  is  a  "  final  settle- 
ment," so  to  speak,  of  the  estate  ;  for  it  is  rather  a  transfer  of 
the  predecessor's  just  balance  to  the  successor.^  The  accounts 
of  a  successor  should  never  be  blended  with  those  of  his  prede- 
cessor.5 

Where  a  predecessor's  final  account  is  duly  prepared  and  pre- 
sented •"'  and  the  administrator  dc  bonis  non  is  a  party  to  such 
settlement,  and  represents  the  creditors  and  others  interested, 
and  afterwards  such  dc  bonis  non  representative  makes  his  own 
final  settlement,  there  is  a  final  settlement  of  the  whole  estate.^ 

§  532.  Accounts  by  Co-Executors  or  Co-Administrators,  Tem- 
porary Administrators,  etc.  —  The  accounts  of  co-executors  or 
co-administrators  may,  in  the  practice  of  some  States,  be  ren- 
dered on  the  oath  of  one  of  them.     In  Pennsylvania  and  some 

^  Supra,  §  156;    Waller  v.   Ray,  48  ==  See  6  Tex.  130. 
Ala.  468  ;  Sevier  v.  Succession  of  Gor-  ^  Kelly  v.  West,  80  N.  Y.  139.     Stat- 
don,  25  La.  Ann.  231.     The  parties  to  utes  in  some  States  authorize  the  pro- 
this  final  accounting  are,  besides  next  of  bate  court,  upon  a  final  account   by  a 
kin,   legatees,    or    distributees,    as    the  representative  removed  from  his  trust, 
case  may  be,  the  successor  in  the  trust,  to  render  a  decree  against  him  for  the 
Waller  v.  Ray,  48    Ala.   468.     Where  balance  in  favor  of  the  successor.     13 
one  is  discharged  or  removed,  persons  Ala.  749.     See,  as  to  remedies  for  re- 
interested  as   creditors,  etc.,  have  the  covering  a  balance  found  due  on  the 
usual  right  of  objecting  to  the  account,  account     of    a    predecessor    deceased, 
Poulson  V.  Frenchtown  Bank,  t,3  N.  J.  Munroe  v.  Holmes,  9  Allen,  244  ;  Bing- 
Eq.  518.     The  New  York  code  specifies  ham.  Re,  32  Vt.  329. 
the  persons  who  may  call  to  account  in  "  See  40  Miss.  747. 
such  cases.     3  Dem.  251.     A  succeed-  -  Hamaker's  Estate,  5  Watts,  204. 
ing    administrator    may     contest     the  *'  As  by  his  own  personal  representa- 
account  of  his  predecessor.     120  Cal.  tive  in  case  of  his  death,  etc.     §531. 
698.  '  State  7'.  Gray,  106  Mo.  526. 

688 


CHAP.   I.]   ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.   §   5  33 

Other  States,  however,  joint  representatives  may  keep  and  file 
separate  accounts,  each  charging  himself  with  a  part  of  the 
estate  ; '  and,  it  is  held,  that  on  the  settlement  of  a  subsequent 
account  by  one,  he  is  not  chargeable  with  the  balance  in  the 
hands  of  the  other,  however  might  be  the  case  in  a  suit  upon 
their  joint  bond.^  There  may  be  advantage  in  such  a  course ; 
for,  on  general  principle,  the  settlement  of  a  joint  account  by 
co-executors  or  co-administrators,  and  its  confirmation,  showing 
a  cash  balance  in  their  hands,  admits  and  adjudges  their  joint 
liability ;  and  a  division  of  the  fund  between  them  does  not 
sever  that  liability ;  ^  though,  as  to  securities  which  appear  to 
be  uncollected,  by  their  joint  accounts,  no  conclusive  liability, 
of  course,  arises.-*  The  separate  accounts  of  co-representatives 
cannot  be  combined  in  making  the  distribution  ;  and,  having  filed 
separate  accounts,  they  have  no  joint  duty  to  distribute^ 

§  533-  Effect  of  Lapse  of  Time,  etc.,  upon  Accounts. —  Lapse 
of  time  may  justify  a  refusal  to  order  an  account  of  administra- 
tion ;  especially,  in  connection  with  other  circumstances,  such 
as  the  death  of  all  the  parties  cognizant  of  the  transactions,  de- 
struction of  the  county  records,  and  loss  of  papers ;  for,  other- 
wise, there  would  be  danger  of  injustice  to  the  deceased  personal 

'  Davis's  Appeal,   23   Penn.  St.  206;  Mass.  Pub.  Stats,  c.   144.     Where  one, 

Bellerjeau  v.  Kotts,  4  N.  J.  L.  359.  of  co-executors  presents  his  account  for 

^  Davis's  Appeal,  ib.  settlement  without  the  other's  signature, 

3  Duncommun's  Appeal,  17  Penn.  St.  his  associate   may  contest  it.     4  Dem. 

268;  Laroe  v.   Douglass,  13   N.  J.  Eq.  364.     A  joint  account  by  two  executors 

308.  prima  facie  renders  one  of  them  liable 

■•  Lightcap's    Appeal,    95    Penn.    St.  for  contribution  to  the  other  who  has 

455.  paid     the     balance.      Conner    v.    Mc- 

5  Heyer's  Appeal,  34  Penn.  St.  183.  Ilvaine,  4  Del.  Ch.  30. 
Co-executors,  who  have  received  and  As  to  a  temporary  administrator's 
inventoried  a  trust  fund  held  by  their  accounts,  see  local  code.  4  Dem.  450. 
testator  as  executor,  and  have  jointly  In  Massachusetts  special  administrators 
settled  their  final  probate  account,  are  are  held  to  account  whenever  required 
jointly  chargeable  with  the  trust  balance  by  the  probate  court;  and  public  ad- 
ascertained  to  be  in  their  hands,  ministrators,  who  have  given  a  general 
Schenck  v.  Schenck,  16  N.  J.  Eq.  174.  bond,  render  an  annual  account  of  all 
See,  also,  §§  400-406.  The  accounts  balances  in  their  hands,  besides  annual 
of  joint  executors  or  administrators  may  accounts  as  to  each  separate  estate, 
be  rendered  on  the  oath  of  one  of  them.  Smith  Prob.  Guide,  163. 

44  689 


§5  34  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

representative."  Under  ordinary  circumstances,  however,  a 
lapse  of  time  less  than  twenty  years  appears  to  constitute  no  bar 
to  the  ordering  of  a  probate  account  ;  -  but,  where  the  adminis- 
tration has  been  closed,  and  the  representative  formally  dis- 
charged, it  may  be  different.^ 

But,  however  it  may  be  with  a  judicial  accounting,  a  court 
may  presume,  a  considerable  time  having  elapsed  since  the  es- 
tate should  have  been  settled  and  the  functions  of  the  represen- 
tative terminated,  that  the  debts  have  all  been  paid,  in  fact,  and 
the  affairs  of  the  estate  finally  and  justly  settled.  Final  settle- 
ments ought  to  be  seasonably  and  directly  assailed,  in  order  to 
avoid  their  effect  as  judgments  importing  verity.-*  Where  an 
account  has  been  finally  adjusted  many  years,  those  concerned 
acquiescing,  apparently,  in  the  settlement,  it  will  not  be  reopened, 
except  upon  good  cause  shown  for  the  delay,^  nor,  usually, 
except  to  correct  mistakes  apparent ;  but  the  representative 
may  be  cited  at  any  time,  to  account  for  assets  not  included  in 
his  settled  accounts,  especially  if  they  come  to  hand  at  a  later 
date.^ 

§  534.  No  Account  required  from  Residuary  Legatee  giving 
Bond  to  pay  Debts,  etc.  — Where  a  residuary  legatee  has  given 
bond  as  executor,  to  pay  the  testator's  debts  and  legatees,  a  bill 
in  equity  cannot  be  maintained  against  him  for  an  accounting 
for  assets  and  administration  in  chancery  ;  nor,  of  course,  can  a 
probate  accounting  be  compelled.     For  the  assets  of  the  estate 


'  Stamper  tA  Garnett,  31    Gratt.  550.  Williams 7'.  Petticiew,  62  Mo.  460.     See 

As  to  a  presumption  of  settlement  after  Schoul.    Dom.    Rel.    §   372  ;    Gregg   v. 

lapse  of  time,  see  9  Phila.  (Pa.)  344.  Gregg,  15    N.    H.   790;  Pierce  v.  Irish, 

^Campbell  v.   Bnien,    i    Bradf.    224.  31    Me.   254;  Smith  7>.   Davis,  49   Md. 

Or  even  twenty-five  years.      14   Phila.  470. 
297.  ^  See  Davis  I/.  Cowden,  20  Pick.  510, 

'  See  Portis  7>.   Cumming.s,    14  Tex.  where  the  delay  shown  was  not  such  as 

139  ;  5  Dem.  453.     Local  methods  are  imputed  acquiescence  in  the  account, 
not  uniform  in  this  respect.     A  decree         *  McAfee  v.  Phillips,  25  Ohio  St.  374  ; 

comprising  a  settlement  of  the  account  supra,   §526;    Soutter,  He,   105   N.  Y. 

was  refused  a  hearing  after  the  lapse  of  114.     Under    circumstances    importing 

thirteen  years,  the  death  of  the  principal  good  faith,  an  account   filed  late  might 

parties,  etc.     79  Va.  468.  be  indulged  as  to  specifying  details. 

*  State  Bank  7'.  Williams,  6  Ark.  1 56  ; 

690 


CHAP.    I.]    ACCOUNTS  OF  EXECUTORS  AND  ADMINISTRATORS.    §    5  34 

become  part  of  his  general  property,  and  are  no  longer  subject 
to  the  enforcement  of  a  trust  in  favor  of  other  legatees  ; '  though 
his  own  estate  is  liable,  like  that  of  any  debtor,  for  debts  and 
legacies  ;  and  his  bond  affords  security  for  the  benefit  of  all  such 
claimants.^ 

'Clarke  v.  Tufts,   5  Pick.  337;  Mc-         ^  Copp  v.    Hersey,    31    N.    H.   317; 
Elroy  V.  Hatheway,  44  Mich.  399.  supra,  §  249. 

691 


§5  36  EXECUTORS    AND    ADMINISTRATORS.  [I'ART   VII. 


CHAPTER  II. 

CHARGES  AND  ALLOWANCES   UPON   ACCOUNTS. 

§  5  35-  W'hat  is  to  be  charged  to  the  Representative,  and  what 
allowed  Him.  —  In  the  present  chapter  we  shall  consider  (i) 
what  may  be  charged  to  the  executor  or  administrator  in  his 
accounts  ;  and  (2)  what  may  be  allowed  him  therein.  We 
shall  here  suppose  the  account  to  have  been  prepared  with 
items  of  the  former  kind  debited  to  him  as  under  schedule  A., 
and  those  of  the  latter  kind  credited  under  schedule  B.' 

§  536-  Representative  should  charge  Himself  with  Inventory 
Valuation  as  a  Basis ;  Corrections  of  Value,  etc.  —  First,  as  tO 
charges.  While  bookkeeping  accounts  are  usually  conducted 
on  the  basis  of  receipts  or  payments  in  cash  or  their  equivalent, 
the  balance  being  struck  accordingly,  a  peculiarity  of  account- 
ing in  most  of  our  probate  courts  is,  that  the  accountant  shall 
charge  himself,  first  of  all,  with  the  total  amount  of  personal 
property  as  returned  in  the  inventory.^  Accordingly,  he  is 
compelled  to  carry  forward  in  schedule  A.,  the  bulk  of  personal 
assets  on  the  appraisers'  valuation  ;  asking  an  especial  credit  in 
the  schedule  B.,  should  any  of  these  assets  realize  at  a  loss  when 
disposed  of,  or  be  worth  less  for  a  distribution,  than  at  their 
valuation  ;  and,  accounting,  in  fact,  for  all  assets  which  have 
come  to  either  his  possession  or  knowledge,  and  not  for  his 
actual  receipts  alone.^  On  the  other  hand,  should  particular 
assets  fetch  more,  or  be  worth  more  in  computing  the  final  bal- 
ance, than  the  amount  stated  in  the  inventory,  the  representa- 

'  See  supra,  §  524.  Every  item  of  partnership  affairs,  if  the  surviving  part- 
receipt  and  expenditure  should  be  dis-  ner  be  executor.  zBradf.  165;  17  Abb. 
tinctly  entered  in  the  account.     Hutch-  (N.  Y.)  Pr.  165. 

inson's  Appeal,  34  Conn.  300;  Jones,  ^  See  Began  v.  Walter,  12  Sm.  &  M. 

Re,    I    Redf.    263;    4    Day,    137.     The  666. 

account  should  include  a  statement  of  ^  49  N.  J.  Eq.  552. 

692 


CHAP.   II.]   CHARGES  AND   ALLOWANCES   UPON   ACCOl'XTINi ;.    ^    537 

tive  must  charge  himself  with  the  excess.  So,  too,  if  assets 
inventoried  as  desperate  and  valueless,  turn  out  to  be  worth 
something,  their  proper  worth,  or  what  they  have  actually  real- 
ized, is  to  be  debited  to  him  in  the  account.  F'or,  an  inventory 
appraisal  is  prima  facie  and  not  conclusive  proof  of  the  repre- 
sentative's liability  for  a  corresponding  amount ;  the  real  test 
of  liability  by  which  his  accounts  shall  be  settled  being,  whether 
he  has  bestowed  honesty  and  due  diligence  in  collecting,  realiz- 
ing upon,  preserving,  and  disbursing  the  assets." 

§  537-  Amounts  to  be  added;  Representative  charged  with 
Personal  Assets  not  inventoried ;  Profits,  Income,  Premiums,  In- 
terest, etc.  —  Indeed,  amounts  received  from  all  sources  not 
included  in  the  inventory,  of  the  nature  of  personal  assets, 
should  be  charged  to  the  accountant,  by  suitable  items,  in  the 
administration  account ;  not  specific  gains  upon  the  inventory 
valuation  alone,  but  new  assets,  or  such  as  from  ignorance,  inad- 
vertence, or  any  other  cause,  were  omitted  from  the  inventory 
itself,^  and  the  income,  interest,  profits,  premiums,  and  usufruct 
of  every  description,  derived  out  of  the  assets  in  the  course  of  a 
prudent  and  faithful  administration  ;  including  premiums  re- 
ceived, and  interest  with  which  the  representative  ought  to  be 
charged,  because  of  culpable  carelessness  or  his  personal  appro- 
priation and  misuse  of  the  assets.^  The  profits  accruing  out  of 
the  decedent's  estate  should  all  be  accounted  for,  whether  they 
accrue   spontaneously  or   by   the  representative's  acts.-*      But 

'  Weed   V.    Lermond,    t^t,    Me.   492  ;  is    no   increase,    profit,    etc.,    that   fact 

Craig  V.  McGehee,  16  Ala.  41.  The  should  be  stated,  i  Redf.  (N.  Y.)  263. 
items  of  the  inventory  need  not  be  re-         *  Wms.  Exrs.   1657,   1847.     And  see 

peated   in   the   account ;  but   only  the  Sugden  v.  Crossland,  3  Sm.  &  G.  192. 

gross    amount     debited.      Sheldon    v.  The  wilful  omission  of  the  representa- 

Wright,  7  Barb.  39.  tive  to  charge  himself  with  assets  com- 

^  But,  by  the  practice  of  some  States,  ing  to  his  hands  has  been  held  ground 

a  new  inventory  should  be  filed  in  such  to  set  aside  his  settlement   for  frauil. 

cases.     Supra,  §  230.  Houts  v.  Shepherd,  79  Mo.  141. 

3  Sugden  v.  Crossland,  3  Sm.  &  G.  The  discussion  of  a  representative's 
192;  Allen  w.  Hubbard,  8  N.  H.  487;  Uability,  in  former  chapters,  may  suffi- 
Liddell  ?■.  McVickar,  11  N.  J.  L.  44.  ciently  .show  what  an  executor  or  admin- 
Income  should  be  stated  as  a  separate  istrator  should  be  charged  with.  A 
item  from  the  principal.  11  Phila.  1 13;  cardinal  principle  in  all  trusts,  already 
Stone  V.  Stilwell,  23  Ark.  444.     If  there  adverted  to,  is  that  the  fiduciary  shall 

693 


§538 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


where  a  legatee  or  distributee  has  once  been  settled  with,  and 
the  executor  or  administrator  holds  one's  securities  as  agent, 
he  is  no  longer  accountable  as  executor  or  administrator.' 

If  the  representative  charges  himself  with  interest,  he  may 
in  various  cases  be  justly  allowed  dividends  as  an  offset.^ 

§  538.  Charging  the  Representative  with  Interest. —  Chancery 
and  probate  courts,  in  modern  practice,  will  compel  the  execu- 
tor or  administrator  to  charge  himself  in  his  account  with  inter- 
est, and,  in  gross  instances,  with  compound  interest,  where  he 
has  abused  his  trust.  This  is  a  doctrine  applicable,  both  in 
England  and  America,  to  all  trustees  who  prove  delinquent  or 
dishonorable  in  the  management  of  the  estate  confided  to  them. 
The  charge  appears  to  be  supported  on  either  of  two  sufficient 
grounds  :  one,  that,  by  perverting  the  fund  in  question  to  his 
own  use,  the  fiduciary  has  made  a  probable  profit  for  which 
interest,  or  compound  interest,  may  be  supposed  a  fair  equiva- 


make  no  personal  profit  out  of  the  trust 
beyond  what  a  court  may  fitly  allow 
him  by  way  expressly  of  compensation 
for  his  services;  and  that,  whatever  the 
gains  out  of  the  assets,  whether  in  the 
course  of  a  rightful  management  or  a 
perversion  of  his  trust,  shall  go  to  en- 
hance the  fund,  and  not  to  enrich  him- 
self, and  shall  be  duly  accounted  for. 
Sit-pra,  §§  322, 332.  Profits  out  of  a  lease 
belonging  to  the  estate,  profits  out  of  a 
trade  of  the  decedent  pursued  by  the 
representative,  profits  out  of  a  purchase 
of  assets,  profits  out  of  an  investment 
made  with  the  assets,  profits  arising 
from  a  composition,  discount,  or  deduc- 
tion of  a  claim  upon  the  estate,  all  come 
within  this  broad  principle.  Purchases 
of  assets,  or  of  the  claims  of  creditors, 
legatees,  or  distributees  upon  the  estate, 
by  the  representative,  are,  if  not  neces- 
sarily void,  treated,  at  all  events,  with 
marked  disfavor,  especially  as  to  the 
profit  he  may  make  on  them,  and  may 
usually  be  avoided  by  interested  parties. 
Supra,  §§  358,  3C3 ;  Trimble  v.  James, 


40  Ark.  393.  And  see  Wms.  Exrs. 
1S42,  and  Perkins's  note;  Cook  v. 
Collingbridge,  Jacob,  607  ;  Hall  v.  Hal- 
lett,  I  Cox,  134;  Wedderburn  v.  Wed- 
derburn,  22  Beav.  100.  The  personal 
representative  is  not  authorized  to  take 
assets  at  their  appraised  value  to  his 
own  use  and  make  what  profit  he  may 
out  of  them.  Weed  v.  Lermond,  t^^i 
Me.  492,  Bonuses  from  borrowers  be- 
long to  the  trust  estate.  Savage  v. 
Gould,  60  How.  Pr.  217;  Landis  v. 
Saxton,  89  Mo.  375.  One  who  trades 
or  operates  with  the  assets  must  account 
to  the  estate  for  all  the  profits  realized. 
Haberman's  Appeal,  loi  Penn.  St.  329. 
Premiums  received  where  gold  com- 
manded a  premium  should  be  accounted 
for.  17  S.  C.  521;  20  S.  C.  64;  37 
S.  C.  1 23.  Also  the  profit  made  on 
some  purchase  of  assets  inconsistent 
with  his  duty,  reserving,  however,  the 
amount  of  his  private  disbursement. 
80  Ala.  II. 

'  31  Hun,  420. 

-  Dudley  7\  Sanborn,  159  Mass.   185. 


694 


CHAP.  II.J  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.  §  538 

lent ;  the  other,  that  loss  of  interest,  occurring  through  his 
remissness  or  misconduct,  should  be  made  up  to  the  fund.  In 
other  words,  all  profits  made  with  trust  moneys,  belong  to  the 
trust ;  and,  furthermore,  a  culpable  failure  to  make  profit  for 
the  estate,  out  of  funds  which  should  have  been  made  produc- 
tive, is  a  waste.' 

Executors  and  administrators,  however,  are  charged  with  more 
reluctance  than  trustees,  for  simply  letting  funds  lie  idle,  since 
their  primary  function  is  to  administer  and  not  to  invest  ;^  but, 
for  any  wilful  perversion  of  the  assets,  they  are  doubtless 
chargeable.^     During  the  first  year,  after  the  decedent's  death, 


'  Trustees  in  general  are  made  liable 
for  interest,  where  they  delay  unreason- 
ably to  invest,  or  mingle  the  trust  money 
with  their  own,  or  neglect  to  settle  their 
accounts  or  pay  over  the  money,  or  dis- 
obey directions  of  the  \\-ill  or  of  a  court 
as  to  the  time  or  manner  of  investing, 
or  embark  the  funds  in  trade  or  specula- 
tion without  authority,  etc.  Perry 
Trusts,  §§  468-472.  Where  extra 
profits  or  bonuses  are  made  by  a  trus- 
tee, they  belong  to  the  estate.  lb. 
§  468.  Compound  interest  is  rarely 
charged  by  the  English  chancery  un- 
less there  was  more  than  mere  negli- 
gence; some  wilful  breach  of  trust  in 
effect.  lb.  §  471.  See  as  to  payments 
made  through  mistake  of  law,  Hulkes, 
Re,  T,},  Ch.  D.  552.  Though,  on  princi- 
ple, it  would  appear  that  if  the  trustee 
has  probably  derived  actual  profit  of 
interest,  compounded  with  periodical 
rests,  from  the  manner  of  using  the 
money,  compound  interest  should  be 
charged  him  by  way  of  a  just  account- 
ing, independently  of  good  or  bad  faith 
on  his  part.  If  a  trust  company  as  ex- 
ecutor issues  its  own  certificates  of 
deposit  for  the  fund,  this  is  essentially 
using  the  trust  money  for  its  own  pro- 
fit.    62  Minn.  408. 

See  as  to  compound  interest  in  cases 
of  administration,  English  v.  Harvey,  2 
Rawle,    305 ;    Slade   v.    Slade,    10    Vt. 


192;  McCall,  Estate  of,  i  Ashm.  357; 
Scott  V.  Crews,  72  Mo.  261  ;  Clark, 
Estate  of,  53  Cal.  355 ;  Wms.  Exrs. 
1851,  and  Perkins's  note;  Jones z/.  Fox- 
all,  15  Beav.  388  ;  Jennison  v.  Hapgood, 
10  Pick.  77;  Blake  v.  Pegram,  100 
Mass.  541 ;  2  Barb.  Ch.  213;  Hook  v. 
Payne,  14  Wall.  252. 

^  Supra,  §  322 ;  Wms.  Exrs,  1844- 
185 1,  and  Perkins's  notes. 

As  to  indemnifying  interest  for  long 
delay  in  proving  a  will,  see  Stevens 
Re,  (1898)  I  Ch.  162. 

3  Executors  and  administrators  are 
liable  for  interest  if  they  mingle  assets 
with  their  private  funds.  Griswold  v. 
Chandler,  5  N.  H.  492 ;  i  Johns.  Ch. 
50,  527,  620;  Jacob  V.  Emmett,  11 
Paige,  142;  4  Cranch  C.  C.  509; 
Grigsby  v.  Wilkinson,  9  Bush,  91  ; 
Troup  7\  Rice,  55  Miss.  278  ;  53  Cal. 
355.  And  see  11  Ala.  521.  Or,  where 
they  are  unreasonably  delinquent  in  pay- 
ing, investing,  or  disbursing  funds,  as  the 
law,  the  testator,  or  the  court  may  have 
expressly  directed.  3  La.  Ann.  353,  574 ; 
Smithers  v.  Hooper,  23  Md.  277 ;  6 
Daly,  259;  Hough  z'.  Harvey,  71  111.  72. 
And  this  delinquency  may  involve  a 
delinquency  in  accounting.  23  Md. 
273;  Lommen  v.  Tobiason,  52  Iowa, 
665.  Or,  where  the  money  is  used  for 
private  gain  and  speculation.  Davis, 
Matter  of,  62   Mo.   450.     Where  they 


695 


§  538 


EXECUTORS    AND    ADM  IXIS  IRATORS.  [pART  VII. 


more  especially,  the  person  who  administers  must  often  keep 
large  sums  in  his  hands  lying  idle,  and  negligence  is  not  readily 
inferred  from  such  conduct,  but  often  the  reverse ;  though,  to 
keep  money  long  in  his  hands,  unproductive,  might  charge  him.' 


fail  to  account  for  interest  or  profits 
actually  produced  by  the  assets,  they 
are  liable  to  be  charged  with  the  highest 
rate  at  which  profit  might  have  been 
made,  and,  at  all  events,  with  interest 
at  current  rates.  Ringgold  r'.  Stone,  20 
Ark.  526;  3  Harring.  469;  English  v. 
Harvey,  2  Rawle,  305.  A  conversion 
of  productive  property  into  cash,  long 
before  it  becomes  needful  for  the  pur- 
poses of  the  estate,  may  be  cupable 
negligence,  so  as  to  charge  th6  repre- 
sentative \nth  interest.  Verner,  Estate 
of,  6  Watts,  250. 

Upon  the  executor's  or  administra- 
tor's own  debt  to  the  estate,  the  usual 
niles  of  interest  apply,  as  to  other  debt- 
ors.    Supra,  §  250. 

Interest  may  be  recoverable  from  an 
executor  on  legacies,  and,  perhaps,  on 
debts  or  claims  which  are  not  seasonably 
paid,  and  whether  he  shall  be  re- 
imbursed from  the  estate  depends  upon 
his  own  conduct  as  justifying  the  delay 
or  not.     Supra,  §§  440,  481. 

See  Saxton  v.  Chamberlain,  6  Pick. 
423,  as  to  examining  the  executor  or 
administrator  upon  oath,  in  order  to 
ascertain  whether  he  is  liable  for  inter- 
est. Interest  actually  received  must  of 
course  be  accounted  for.  Supra,  §  537- 
And,  if  a  representative  improperly  em- 
ploys funds  in  trade  or  speculation,  the 
beneficiaries  may  elect  to  take  the  profits 
instead  of  interest.  Wms.  Exrs.  1847  ! 
Rocke  V.  Hart,  1 1  Ves.  61  ;  Robinett's 
Appeal,  36  Penn.  St.  174;  supra,  §  338. 
Where  an  executor  or  administrator 
dies  in  office,  liability  for  interest  may 
be  suspended  while  the  estate  is  unrep- 
resented. 6  Rich.  83.  On  improper 
payments  disallowed  in  his  account, 
one  is  not   readily  to  be  charged  with 


interest.  Clauser's  Estate,  84  Penn.  St. 
51.  As  to  interest  on  uncollect  etl 
claims,  see  Strong  v.  Wilkinson,  14 
Mo.  116. 

One  who  has  diligently  and  faithfully 
discharged  his  trust  of  administration 
is  chargeable  only  for  the  interest  he 
has  made.  11  N.  J.  L.  145;  6  Dana, 
3;  16  S.  &  R.  416.  And  for  a  mere 
delay  in  making  returns,  where  the  col- 
lection, management,  and  disbursement 
of  assets  has  been  prudent  and  honor- 
able, interest  is  not  usually  imposed. 
Binion  v.  Miller,  27  Ga.  78.  But,  if 
such  delay  involves  the  beneficiaries  of 
the  estate  in  great  cost  and  trouble,  it 
may,  perhaps,  be  otherwise.  lb.  See 
also  Davis,  Matter  of,  62  Mo.  450. 
Closing  a  deposit  which  bore  interest, 
and  transferring  the  fund  to  a  bank 
which  pays  no  interest,  before  it  was 
necessary  to  do  so,  does  not  render  the 
executor  or  administrator  liable  for 
interest,  provided  he  does  not  mingle 
it  with  his  own  moneys,  or  use  it  for 
his  own  profit,  or  deposit  it  in  his  own 
name,  or  neglect  unduly  to  disburse  or 
settle  his  accounts.  Wms.  Exrs.  1844; 
McQueen,  Estate  of,  44  Cal.  584;  12 
S.  C.  422. 

'  Wms.  Exrs.  1844,  and  Perkins's 
note;  2  Cox,  115  ;  3  Bro.  C.  C.  73,  108, 
433;  Ashburnham  v.  Thompson,  13 
Ves.  401.  In  Griswold  v.  Chandler,  5 
N.  H.  497,  it  is  observed  that  where 
the  administrator,  without  any  just  rea- 
son, retains  money  in  his  hands  unem- 
ployed, when  it  ought  to  be  paid  over, 
or  receives  interest  for  money  which 
belongs  to  the  estate,  or  applies  it  to 
his  own  use,  he  ought  to  be  charged 
with  interest,  but  not  otherwise.  And 
see    Stearns   v.    Brown,    1    Pick.    531  ; 


696 


CHAP.    II.]    CHARGES  AND  ALI-OWANCES   UPON   ACCOUNTING.    §   5  39 

Whether  the  personal  representative  shall  justly  be  charged 
with  interest  on  funds  belonging  to  the  estate,  the  particular 
circumstances  in  each  case  must  determine.  American  practice 
does  not  appear  to  favor  charging  the  representative  with  inter- 
est upon  funds  which  he  is  prepared  to  disburse,  and  denying 
him  his  commissions  or  compensation  besides,  unless  some  wil- 
ful default  be  shown.'  Local  statutes,  however,  supply  local 
rules  on  this  subject. - 

§  539-  Charges  on  Account  as  Concerns  Real  Estate  or  its 
Proceeds  or  Profits.  —  Real  estate,  we  have  seen,  may  be  inven- 
toried under  a  separate  head  ;  but  it  is  the  amount  of  personal 
property  alone,  as  returned  in  the  inventory,  for  which  a  repre- 
sentative is  primarily  chargeable  in  account,  since  one  does  not, 
in  that  capacity,  deal  usually  with  a  decedent's  real  estate,  unless 
an  emergency  arises.^  Nor  do  rents  of  land  go  properly  into 
an  administration  account,  to  be  blended  with  items  of  personal 
assets ;  as  the  outlay  or  distribution  of  such  funds  follows  dis- 
tinct rules.-*  If  the  heirs  or  devisees  permit  the  representative 
to  manage  real  property,  his  account  becomes  most  naturally  a 
special  account  with  them  as  their  attorney.^ 

Where,  however,  real  estate  has  been  sold  under  a  license  for 
the  payment  of  debts,  or  under  a  power  contained  in  a  will,  or  in 
some  other  manner  lands  or  their  proceeds  come  into  the  hands 
of  the  executor  or  representative,  to  be  managed  and  dealt  with 
as  personal  assets,  they  enter  into  the  usual  administration  ac- 
count together  with  rents  and  profits  subsequently  accruing ; 
the  representative  taking  due  care  to  settle  the  same  with  those 
properly  entitled  thereto.''  Real  estate  may  well  be  accounted 
for  under  such  circumstances,  under  special  schedules ;  and  so 

Knight  7J.  Loomis,  30  Me.  204;  Ogilvie  est  where  the  representative  draws  fund 

V.  Ogilvie,  I  Bradf.  356.     Pursuance  of  from  bank,  see  183  Penn.  St.  647. 

duty,  in  accordance  with  the  principles  ^  Clark  v.  Knox,  70  Ala.  607. 

we  have  discussed,  affords  a  fair  test.  ^  Supra,  §§  213,  509. 

An  executor  charged  with  special  duties  "  Supra,  §  510  ;   11  Phila.  1 18. 

maybe  bound  to  invest  and  not  leave  '  With  regard  to  expenses  of  laborers, 

funds  long  idle.  etc.,  in  getting  in  crops,  see  70  Ala.  63  ; 

'  Troup  V.  Rice,  55  Miss.  278  ;  Lloyd's  §  307. 

Estate,  82    Penn.  St.  143.     As  to  inter-  *  See  Boyd,  AV, -i  Redf.  1  54  ;   P.ul  VI., 

697 


§    540  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII, 

with  all  funds  set  apart  agreeably  to  law  or  a  testator's  direc- 
tions for  special  purposes.  In  a  few  States,  moreover,  as  we 
have  seen,  both  the  real  and  personal  property  of  a  decedent  is 
temporarily  managed  by  his  executor  or  administrator." 

If  in  the  sale  or  management  of  the  land,  under  due  author- 
ity as  above,  the  representative  is  guilty  of  culpable  negligence 
or  bad  faith  resulting  in  loss  to  the  estate,  he  may  be  charged 
with  such  loss  on  his  accounting.^  On  the  other  hand  he  should 
be  allowed  for  all  expenses  fairly  incurred  upon  such  property 
in  the  discharge  of  his  trust. ^ 

§  540.  Charges  on  Account ;  Miscellaneous  Points. —  In  adjust- 
ing an  administration  account,  the  probate  court  has  authority 
to  require  that  assets  not  inventoried  nor  credited  by  the  exec- 
utor or  administrator,  shall  nevertheless  be  accounted  for.*  And 
the  validity  of  a  claim  against  the  executor  or  administrator  in 
favor  of  the  estate,  as  growing  out  of  his  misappropriation  or 
abuse  of  trust,  may  thus  be  established. 5 

Where  the  executor's  or  administrator's  accounts  are  not  only 
untrustworthy,  but  of  a  most  suspicious  character,  he  is  readily 
liable  to  be  charged  with  omitted  assets  against  his  own  state- 
ments ;  though  the  question  is,  after  all,  one  of  evidence.'' 

On  the  other  hand,  where  the  representative  has  acted  ap- 
parently in  good  faith  and  for  the  best  interests  of  the  estate,  and 

c.  2.   Chattels  real,  leases,  etc.,  of  course,  <  Boston  v.  Boylston,  4    Mass.  318; 

if  sold  or  underlet,  enter  into  adminis-  Hurlburt    v.    Wheeler,    40    N.   H.  73; 

tration  accounts  with  personal  property.  Wills  -v.  Dunn,  5  Gratt.  384. 

Sup7-a,%  22.T,.    See  Gottsbergerz/.  Smith,  'Gardner?/.   Gardner,  7    Paige,  112; 

2  Bradf.  86.  Ho vey  z/.  Smith,  i  Barb.  372.     If,  in  the 

'  Supra,  §  510.  administration  account,  the  representa- 

=  Haight  7'.  Brisbin,    100  N.   Y.   29;  tive  does  not  charge  himself  with  any 

Brown  v.  Keed,  56  Ohio  St.  264.  property  whatever,  but   enters  simply, 

^  Part   VI.  supra;  Dey   v.   Codman,  "the  appraisers  made  no  return  of  per- 

39  N.  J.  Eq.  258;  87  N.  C.  34.  sonal  property,"  the  court  does  not,  by 

A.  finished  a  house  partly  erected  by  decreeing  allowance,  find  that  there  was 

his  wife,  being  her  administrator,  igno-  no  property,  etc.     Moore  v.  Holme.s,  32 

rant  that   she  had  left  a  will,  and  sup-  Conn.  553. 

po.sing  himself  life  tenant  of  the  prem-  *  Downie  v.   Knowles,   37   N.  J.  Eq. 

ises.     He  was  allowed  credit  with  its  513. 
cost  on  his  account.     .Sewell  v.  Sling- 
luff,  62  Md.  592. 

698 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.  §  54 1 

the  probate  court  approved  his  acts  at  the  time,  he  deserves  pro- 
tection, whether  all  his  acts  were  technically  legal  or  not.' 

§  541-  Allowances  to  the  Representative;  Disbursements, 
Losses,  etc. —  Second,  as  to  what  shall  be  allowed  an  executor 
or  administrator  in  his  accounts.  The  opposite  schedule  of  the 
administration  accounts,  or  schedule  B.,  exhibits  amounts  paid 
out  in  detail,  and  such  sums,  by  way  of  charge  to  the  estate,  as 
the  representative  may  claim  for  allowance.  As  to  the  amounts 
paid  out,  all  proper  disbursements  made  by  the  executor  or  ad- 
ministrator with  due  regard  to  rules  of  priority  and  limitations 
as  to  creditors,  in  the  course  of  settling  the  estate,  should  here 
be  credited  ;  and  whether  the  debt  or  claim  originated  with  the 
decedent,  or  with  himself,  he  is  entitled  to  its  allowance  and 
credit,  if  it  be  fitly  charged  against  the  estate  on  the  general 
principles  of  law  which  apply  to  administration.^  Even  though 
he  paid  before  he  was  obliged  to  do  so,  he  is  entitled  to  full  credit 
if  the  estate  suffered  no  damage  by  it.^  The  expenses  incurred 
in  realizing  a  particular  fund,  or  collecting  a  particular  claim, 
are  properly  charged  accordingly,  so  as  to  present  a  net  result.' 

Following  the  general  maxims,  elsewhere  fully  discussed,  each 
credit  should  be  allowed  according  to  what  was  honestly  and 
prudently  disbursed.  If  the  representative  has  paid  off  claims 
at  a  discount,  the  estate  shall  reap  the  benefit ;  5  while,  for  what 
he  may  have  paid  out  imprudently,  or  dishonestly,  or  illegally, 
full  credit  cannot  be  allowed.''  Claims  which  have  been  paid 
in  the  exercise  of  a  sound  and  prudent  discretion,  where  the  local 
practice  leaves  this  fiduciary  to  settle  and  adjust  with  creditors, 
should  be  allowed  ;  ^  and  it  is  not  enough  for  their  disallowance, 

'  Owen  w.  Potter,  115  Mich.  557.  Ga.  75;  Chevallier  ?'.   Wilson,  i   Tex. 

^  Supra,  §  441  ;  Edelen  v.  Edelen,  11      161.     See  8  N.  H.  444. 
Md.  415.     "Expenses  of   settling   the         ^  .5>c/rrt,  §  431. 

estate"  ought  to  be  specified  by  items,         ^  See   supra.    Part   V.,  c.   i;  Rogers 

not  allowed  as  a  gross  sum.     30  Conn.     v.   Hand,  39  N.    J.    Eq.  270,  where  a 

205.  claim  was  compromised  to  avoid  litiga- 

3  Millard  v.  Harris,  119  111.  85.  tion,  and  the  residuary  legatees  opposed 

*■  Hays's  Estate,  153  Penn.  St.  328.         the  settlement.     Taxes  (personal)  paid 

5  Paff   V.   Kinney,    i    Bradf.    Sur.   i ;     with  rea.sonable  prudence  are  allowable, 

supra,  §  638;   Carruthers  v.  Corbin,  38     even   though  the  tax  was  subsequently 

declared  void.     142  Mo.  187. 
699 


§   542  KXECUTORS    AND    ADMINISTRATORS.  [PART   VII. 

that  their  payment  might  possibly  have  been  resisted.'  The 
same  considerations  hold  true  of  paying  allowances  to  widow  or 
children,  legacies  and  distributive  shares.  As  distribution  can 
only  be  safely  made  upon  a  final  surplus,  an  administration  ac- 
count which  credits  all  advancements  to  distributees,  as  they 
happen  to  be  made,  without  reference  to  the  respective  shares 
and  their  amounts,  is  erroneous  in  form.''  Disbursements  by 
way  of  distribution  are  to  be  reckoned  on  a  division  of  the  bal- 
ance, all  distributees  being  treated  fairly.  And  on  such  a  basis, 
for  whatever  is  advanced  by  the  representative  to  parties  in  inter- 
est he  may  reimburse  himself.^  What  a  retiring  representative 
pays  over  to  his  successor  he  should  be  credited  with.-* 

Where  assets  realize  less  on  sale  or  collection,  or  otherwise 
prove  less  valuable  than  as  appraised  in  the  inventory,  the  loss 
or  depreciation  should  be  stated  by  way  of  credit ;  5  and  if  proper, 
allou^ance  will  be  made  accordingly.''  Nothing  can  be  allowed 
one,  however,  inconsistent  with  the  just  fulfilment  (  f  his  fidu- 
ciary obligations  ;  but  he  is  chargeable  with  all  losses  resulting 
from  his  maladministration. ^ 

§  542.  Allowances  to  the  Representative;  Subject  continued; 
his  Reasonable  Expenses,  etc. —  Disbursements  credited  may 
include  expenses  of  last  sickness,  the  funeral  and  burial  ex- 

'  Frazer,  Ke,  92  N.  Y.  239.  stock.     Jones,   Ex  parte,  4   Cr.  C.  C. 

^  Pearson  v.  Darrington,  32  Ala.  227  ;  185  ;  Jones,  Re,  i  Redf.  263.     Or  -where 

Rittenhouse  v.  Levering,  6  W.  &  S.  190 ;  a  debtor,  supposed  with  good  reason  to 

Adair  v.  Brimmer,  74  N.  Y.  539;  §  527.  be  good,  turned  out  insolvent.     CHne's 

3  See  Part  V.,  c.  5;  Lyle  z/.  WilHams,  Appeal,  106  Penn.  St.  617.     Or  in  case 

65  Wis.  231  ;  Gundry  7'.  Henry,  65  Wis.  of  a  prudent  deposit  of  funds  in  a  bank 

559;  Kost's  Appeal,  107  Penn.  St.  143.  which   afterwards  fails.     38   N.   J.  Eq. 

<  Even    though  he  pays    before   his  259.     See  Part  IV.,  cs.  2-5. 
successor  cjualifies,  he  may  credit  him-  '  As  where   he    pays  claims   in    full 
self  with  the  payment,  so  long  as  the  regardless    of    the    priority    of    other 
successor  becomes  duly  charged  with  it.  claims.     108   Ala.  209.     Or  incurs  ex- 
Allen  V.  Shriver,  8j  Va.  174.  pense  in  suing  a  debt  due  from  him- 

5  For,  reckoning  upon  the  basis  of  self  to  the  estate.     150  Penn.  St.  307. 

an    inventory    value,    the    accountant  Where   he   fails  to    keep    accounts,    a 

debits   himself  with   gain,   and  credits  credit  in  obscurity  or  doubt  which  he 

himself  with  loss,  instead  of  accounting  claims  is  treated   unfavoral)ly  to  him. 

for  gross  amounts  actually  realized.  54  N.  J.  Eq.  371. 

*  Supra,  §  362.     As  upon  a  sale  of 

700 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.  §  542 

penses,  the  outlay  for  cemetery  lot  and  monument,  all  of  which 
have  been  sufficiently  discussed  ; '  together  with  those  other 
preferred  claims,  commonly  styled  the  charges  of  administra- 
tion, as  to  which  last,  the  representative  submits  his  claim,  as 
for  a  personal  allowance,  more  directly  to  the  discretion  of  the 
court  upon  accounting.  For  an  executor  or  administrator  can- 
not pay  himself ;  but  his  compensation  is  judicially  decreed, 
either  expressly  or  by  the  allowance  of  his  account.^  All  rea- 
sonable charges  incurred  for  the  benefit  of  the  estate  are  to  be 
allowed  to  a  faithful  representative,  together  with  a  reasonable 
recompense  for  his  trouble.^  And  thus  may  he  be  indemnified 
against  loss  upon  contracts  relating  to  the  estate,  where  he  has 
necessarily  incurred  a  personal  liability. ■♦ 

Thus,  where  the  executor  or  administrator  pays  a  debt  or 
discharges  an  obligation,  which  constituted  a  just  charge  against 
the  estate,  out  of  his  private  funds,  he  may  claim  an  allowance 
for  the  same  in  his  account. 5  And  though  he  should  have  paid 
prematurely,  yet  for  that  which,  regarding  legal  priorities,  was 
then  justly  payable,  he  may  claim  remuneration.-'  Payments 
made  in  good  faith,  under  a  dc  facto  appointment,  may  be  al- 
lowed, notwithstanding  a  revocation  of  the  appointment  after- 
wards.7  A  sacrifice  of  assets  to  meet  obligations  may  be  justi- 
fied as  not  unreasonably  imprudent.'*  And,  where  the  proper 
disbursements  exceed  the  receipts,  relief  may  be  had  from  other 
property  belonging  to  the  estate,  as  from  the  decedent's  lands, 
if  the  personal  assets  prove  insufficient.'^     The  charge  of  inter- 


'  See  supra,  §§  421,  422.     And  as  to  ^  Bloomer  v.  Bloomer,  2  Bradf.  339; 

necessaries  for  support   of  the  family,  supra,   §    i6o;    Sewell   v.    Slingluff,   62 

see  supra,  §  448.  Md.  592. 

^  See  Collins  v.  Tilton,   58   Ind.  374.  ^  Or,  of  course,  as  necessary,  in  order 

^  Nimmo  v.  Commonwealth,  4  H.  &  to  comply  %\nth   the  law.     Wingate  v. 

M.  57;  Pearson  v.  Darrington,  32  Ala.  Pool,  25  111.  118. 

227;  Edelen  v.   Edelen,    11.  Md.    415;  '  Reaves   v.    Garrett,    34    Ala.    558; 

Glover  v.  Halley,  2  Bradf.  291  ;  Clarke  Clayton  v.  Somers,  27   N.  J.  Eq.  230. 

V.  Blount,  2  Dev.  Eq.  51  ;  Wilson,  Re,  Usurious    payments    are    unfavorably 

2  Penn.  St.  325.     But  see  supra,  §  315.  regarded,  and  yet  they  may  be  allowed 

'■  Supra,  §  259.  in    meritorious    instances.      Coffee   v. 

5  Woods   V.    Ridley,    27    Miss.    119;  Ruffin,  4  Coldw.  487.     See  2  P.  &  H. 

Watson  V.  McClanahan,  13  Ala.  57.  (Va.)  124.     The  expense  of  keeping  a 

'' Johnson  •z'   Corbett,   11    Paige,  265.  horse  which  could  not  be  sold  may  be 

701 


§    542  EXECUTORS    AND    ADMINISTRATORS.  [pART  VII. 

est  by  a  representative,  for  payments  from  his  own  means,  is 
viewed  with  suspicion  ;  yet  interest  may  be  allowed  him  on  sums 
advanced  by  him,  for  necessary  outlays  to  preserve  the  assets 
or  for  debts  carrying  interest.' 

But  special  costs  and  expenditures,  incurred  through  the 
representative's  own  culpable  carelessness  or  misconduct,  he 
cannot  fasten  upon  the  estate.^  Nor  can  he  claim  interest 
from  the  estate,  for  debts  paid  and  advances  from  his  private 
funds,  where  he  might  have  met  such  demands  seasonably  out 
of  the  assets.-^  Nor  be  credited  with  payment  made  for  debts 
unauthorized  by  law,  from  a  sense  of  honor  and  to  save  family 
disgrace ;  for  such  payments,  if  honorably  made,  are  made  from 
one's  own  means.'  For  whatever  losses  or  impairment  of  as- 
sets may  have  been  occasioned  by  the  representative's  want  of 
due  diligence  or  bad  faith,  by  his  disobedience  to  the  directions 
of  a  will,  of  a  local  statute,  or  of  the  general  law  pertaining  to 
the  administration  of  the  estate  intrusted  to  him,  he  is  account- 
able.5  Nor  can  one  charge  the  estate  for  looking  up  or  litigat- 
ing some  interest  purely  of  his  own,  as  an  heir  or  otherwise.'' 

Expenses  incidental  to  a  sale  of  assets,  including,  if  proper, 

allowable.     7   J.    J.   Marsh.    190.     And  liable.     8  B.  Mon.  461.     Or  where  he 

see  §  327.  pays   without    a    sufficiency   of   assets, 

'  Liddell  v.   McVickar,    11    N.J.    L.  debts  to  which  others  should  have  been 

44;  Mann  v.  Lawrence,  3  Bradf.  424.  preferred.     See  Part  V.,c.  i.    In  Evans 

A    novel    question    (1899)    which   is  ?'.  Halleck,  83  Mo.  376,  the  court  would 

likely  to  be  frequently  discussed,  relates  not  subrogate  him  to  the  rights  of  a  se- 

to  the  right  of  one  to  charge  an  estate  cured  creditor  whom  he  had  mistakenly 

specially   with    the   cost    of    procuring  paid. 

sureties  on  his  bond,  or  more  particu-  ^  Billingslea  v.  Henry,  20  Md.  282. 

larly  for  paying  a  guaranty  company.  ''  Jones  v.  Ward,  10  Yerg.  160. 

See  51    La.   Ann.    490;  Eby's    Estate,  '  Part  IV.,  cs.  2,  5  in  detail ;  Weldy's 

164  Penn.  St.  249   (not  allowed).     The  Appeal,   102   Penn.  St.  454.     A  loss  of 

rent  of    a  box  in  a  safe-deposit  vault  property  occurring  through   the  repre. 

may  be  allowed  to  the  representative,  sentative's  culpable  neglect  to  apply  for 

Dudley  z/.  Sanborn,  159  Mass.  185.  anorderof  distribution  has  been  charged 

See  as  to  costs,  (1897)  2  Ch.  190.  to  him.     Sanford  v.  Thorp,  45   Conn. 

^  Brackett  v.  Tillotson,  4  N.  H.  208;  241.     Cf.  8  N.  H.  444.     And  for  dam- 

Robbins  v.    Wolcott,    27    Conn.    234.  ages  to  distributees  by  his  unreasonable 

Losses  occurring  through  his  negligence  delay.     71  Ala.  163. 

in  taking  a  refunding  bond  from  distrib-  ''Glynn's     Estate,    Minn.      And   see 

utees    may   render    the    representative  163  Penn.  St.  35. 

702 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUNTING.  §  542 

an  auctioneer's  bill,  may  be  thus  charged  to  an  estate  ;'  and  in 
certain  sales  a  broker's  services  are  well  employed.^  Under 
some  circumstances,  considering  the  condition  of  the  estate,  the 
expense  of  an  agent,  collector,  or  bookkeeper,  may  be  charged  to 
a  reasonable  amount ;  ^  though  not  as  an  extra  charge,  where  the 
agent  was  needlessly  employed  to  do  what  the  representative 
might  personally  have  done.'*  Likewise,  the  cost  of  publishing 
citations,  and  other  expenses  attending  the  probate  proceed- 
ings.5  Or  valuable  services  rendered  in  procuring  assets,  and 
even  the  services  of  a  detective  or  other  expert,  or  of  some  one 
employed  to  procure  evidence  or  serve  as  a  witness,  where  the 
service  was  needful  or  just.^ 

Whether  the  executor  or  administrator  can  claim  for  travel- 
ling expenses  to  and  from  court,  or  board  and  lodging,  will  depend 
upon  custom  and  the  special  circumstances;  and  all  expenses 
of  this  nature  must  have  been  reasonably  and  bona  fide  incurred 
in  prosecuting  the  business  of  the  estate ;  ^  but  a  collateral 
relative  cannot  charge  the  estate  for  offices  properly  gratuitous 
and  kind,  even  though  he  be  executor  or  administrator,^ 

An  executor  or  administrator  should  not  charge  the  estate 
for  services  rendered  by  him  during  his  decedent's  lifetime,  of 
apparently  a  gratuitous  character  or  recompensed  by  a  legacy ; 

'  Pinckard  v.  Pinckard,  24  Ala.  250.  v.  Peabody,  64  Ga.  729.     In  England, 

This  does  not  include  liquors  furnished  clerk-hire,    etc.,    is    more    naturally   al- 

at  an  auction,  nor  usually  any  refresh-  lowed,  because  the  fiduciary  can  receive 

ments     to     customers.       Griswold     v.  no  personal  compensation.     See  Perry 

Chandler,   5   N.   H.  492.     As   to    pur-  Trusts,  §  912. 
chasing  lumber,  see  31  Oreg.  86.  ^  Lewis,  Re,  35  N.  J.  Eq.  99;  Greene 

^  See    Myrick    Prob.   86 ;    Tucker  v.  v.  Grimshaw,  1 1  111.  389. 
Tucker,  29  N.  J.  Eq.  286.  ''  Disallowed    in    3   Hayw.   123.     An 

3  McWhorter  v.  Benson,  Hopk.  28  ;  administrator   has    no   right  to  charge 

Morrow  v.  Peyton,  8  Leigh,  54 ;  Hen-  considerably  more  by  reason  of  living 

derson  v.   Simmons,    t^t,    Ala.   291  ;   16  at  a  distance  from  the  place  where  his 

La.  Ann.  256;  i   Harp.   Ch.  224;  121  duties  have  to  be  performed.     Watkins 

Cal.  609.     And  see  16  Abb.  Pr.  N.  s.  v.  Romine,  106  Ind.  378.     Actual  trav- 

457.  elling  expenses  were  allowed  in  Dey  v. 

*  Gwynn  v.  Dorsey,  4  Gill  &  J.  453.  Codman,  39  N.  J.  Eq.  258.     As  to  travel 

5  Reynolds  v.  Reynolds,  1 1  Ala.  1023.  on  business  of  the  estate  with  one's  own 

In  American  practice,  a  charge  for  cleri-  horse,  carriage,  and  fodder,  see  4  Dem. 

cal  services  is  not    generally  allowed,  536.     See  also  31   Oreg.  86;   122  Cal. 

though   special  circumstances  may  jus-  260. 

tify  such  charges.     3  Redf.  465  ;  Miles         ^  Lund  v.  Lund,  41  N.  H.  355. 

703 


§   543  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

nor  upon  any  iniquitous  claim.'  But  for  a  bona  fide  debt  due 
him  by  the  decedent,  he  may  claim  allowance  as  creditor  on  the 
usual  footing ;  all  proper  offsets  being  duly  reckoned.^  Profits 
that  should  have  been  made  as  well  as  those  actually  made  out 
of  the  assets  may  be  charged  in  a  strong  case  against  the  repre- 
sentative, as  a  penalty  for  his  fraud  or  obvious  mismanagement, 
and  so  as  to  put  the  estate  at  its  just  value. ^  And  whatever 
the  true  principle  as  to  requiring  an  executor  or  administrator 
to  charge  himself  absolutely  with  a  debt  which  he  personally 
owes  the  estate,-*  there  can  be  no  doubt  that  if  he  was  well  able 
to  pay  when  he  assumed  the  trust,  he  should  be  charged  with 
it  on  his  final  account,  though  by  that  time  he  was  insolvent. 5 
But  an  executor  or  administrator  who  in  a  proper  case  of 
doubtful  title  is  party  to  a  bill  of  interpleader,  is  not,  pending 
its  determination,  chargeable  with  a  sum  which  may  ultimately 
be  decided  to  belong  to  the  estate.*'  Nor  is  the  representative 
necessarily  to  be  charged  with  the  difference  between  what  was 
offered  him  for  property  of  the  estate  and  what  he  sold  it  for ; 
the  question  being  his  exercise  of  good  faith  and  due  care  and 
diligence  under  all  the  circumstances.^ 

S  543.    Expenses    of    Education,    Maintenance,    Advancements, 

etc. Expenses  of  education  and  maintenance  devolve,  usually, 

upon  trustees  under  a  will  and  guardians,  rather  than  upon  the 
fiduciary  who  administers  and  distributes  the  estate.-  An  ad- 
ministrator cannot  in  general  be  credited,  in  his  accounts,  for 
board,  clothing,  or  other  necessaries  of  his  adult  distributees ;  '> 

'  Egerton  7'.   Egerton,   17   N.   J.  Eq.  ness  of  a  firm  of  which  he  is  a  member. 

419;  supra,  §  431  ;  Pursel  v.  Pursel,  14  95  N.  Y.  340.     See  88  N.  C.  407. 

N   J.  Eci.  i;i4.  *  Sanderson    v.    Sanderson,    20    Fla. 

^  Supra,  §  439.     See  further,  Kerr  v.  292. 

Hill,  2  Desau.  279;  Dickie  v.  Dickie,  ^o  N.  J.  Eq.   158;  Part  IV.,  c.  3; 

80  Ala.  37.  §  537- 

3  Grant  7'.  Reese,  94  N.  C.  720.  ^  See  Perry  Trusts,  1 17,  612  ;  Schoul. 

"  See  §   208 ;   Baucus  v.   Stover,   89  Dom.  Rel.  3d  ed.  §  238. 

N.  Y.  I    (which  reverses  s.  c.  24  Hun,  '  Brewster  v.  Brewster,  8   Mass.  131  ; 

109).     And  see  69  Cal.  239.  Trueman  v.  Tilden,  6  N.  H.  201  ;  V^illis 

5  Condit  V.  Winslow,    106   Ind.    142.  '«.  Willis,  9  Ala.  330;  Sorin  v.  Olinger, 

Under  the  New   York  code  the  repre-  12  Ind.  29;   10  Sm.  &  M.  179;  8  Jones 

sentative  is  chargeable  for  the  indebted-  L.  111.     Rent  of  a  family  pew,  occupied 

704 


CHAP.   !I.]    CHARGES  AND  ALLOWANCES   UPON  ACCOUKTI  \( ;.    §    544 

for  such  outlay,  if  matter  of  allowance  at  all,  affects  only  the 
method  of  paying  fully  the  share  of  an  individual  distributee,  as 
if  the  representative  advanced  him  so  much  money.  On  a 
settlement  of  administration  accounts,  one  is  not  properly 
credited  for  money  advanced  by  him  to  a  distributee ;  but  the 
amount  may  be  charged  by  him  against  the  distributee  when 
the  latter's  distributive  share  is  ascertained.'  But  statute  al- 
lowances to  widows  and  young  children  stand  on  their  own 
peculiar  footing ;  ^  and,  as  to  executors,  these  may  have  the 
right  and  duty  of  applying  sums  for  education  and  maintenance, 
in  exceptional  instances,  under  a  testator's  directions.^  Upon 
equitable  principles  our  probate  courts  may  allow  either  to  execu- 
tors or  administrators  sums  advanced  for  an  infant  legatee's  or 
distributee's  education  and  maintenance;  and  such  jurisdiction, 
it  is  held,  may  be  implied  even  if  not  expressly  conferred.'' 

Charges  for  the  maintenance  or  education  of  the  decedent 
himself  are  reckoned  like  other  claims  against  an  estate  ;  and, 
while  the  representative's  own  charge  in  such  connection  invites 
scrutiny,  it  may,  if  proper,  be  allowed  him. 5 

§  544.  Allowance  of  Counsel  Fees,  Costs,  etc.  —  Executors 
or  administrators  who  ask  legal  advice,  employ  counsel,  or  incur 
costs  in  litigation  on  behalf  of  the  estate,  may  claim  reasonable 
allowance  for  the  same  in  their  accounts,  such  employment  be- 
ing reasonable  and  proper.^     It  is  the  duty  of  a  representative 

by  the  family  after  the  testator's  death,  Rogers  v.  Traphagen,  42  N.  J.  Eq.  421  ; 

follows  this  rule.     Scott  v.   Monell,    i  39  N.   J.  Eq.  258 ;    20  Fla.   262 ;  Gil- 

Redf.  431.     And  see  State  v.  Donegan,  fillen's  Estate,  170  Penn.  St.  185  ;  Ford 

83  Mo.  374.  V.  Ford,  80  Wis.  565;  6  Houst.  552. 

'  Dickie  v.  Dickie,  80  Ala.  57  ;  Fitz-  '  Malony's  Appeal,   11    S.  &  R.  204 ; 

gerald's  Estate,  57  Wis.  508.  Wall's  Appeal,  38  Penn.  St.  464.     And 

^  Supra,  §  451  ;    Mead  v.   Byington,  see  4  Redf.  380. 

10  Vt.  116;   I  Har.  &  J.  227  ;  Simmons  ^  Wms.   Exrs.   i860;    Macnamara  v. 

V.  Boyd,  49  Ga.  285.  Jones,  Dick.  587  ;  24   W.  R.  979.     See 

3  Triggs    V.    Daniel,    2    Bibb,    301  ;  also  §  256.     The  fact  that  the  adminis- 

Harris  v.  Foster,  6  Ark.  388.  trator  was  insane  when  he  paid  does 

■•  Hyland  v.   Baxter,   98  N.   Y.   610.  not    deprive    him    of   such    credit.     95 

And  see  Munden  v.  Bailey,  70  Ala.  63.  N.  C.  265.     Reasonable  compensation 

Moneys  may  be  thus  expended  in  good  for  services  and  expenses  in  rectifying 

faith  and  properly  for  infant   legatees  mistakes  made  without  the  representa- 

or  distributees  who  have  no  guardian,  tive's  fault  is  allowed.     Bartlett  v.  Fitz, 

45  705 


§  544 


EXECUTORS    AND    ADMlNISTRAtORS.  [PART  VII. 


to  defend  the  estate  against  claims  which  he  honestly,  or  upon 
reasonable  grounds,  believes  to  be  unjust ;  and  these  expenses 
should  be  reimbursed,  even  though  the  suit  be  lost ; '  and  cer- 
tainly, if  the  estate  benefit  by  it.  The  principles  are  those  dis- 
cussed elsewhere  :  good  faith  and  ordinary  prudence  on  his  part, 
in  protecting  the  interests  he  represents,  are  all  that  may  be 
exacted  of  him ;  ^  and,  in  employing  counsel,  he  incurs  a  per- 
sonal liability,  his  lien  on  the  assets  serving  for  his  own  indem- 
nity.^ With  such  reservations,  the  expenses  of  a  litigation  bona 
fide  incurred,  whether  for  procuring  the  probate  of  a  will  or 
one's  appointment,  or  in  the  due  course  of  administration,  as  in 
the  pursuit  of  assets,  or  in  resistance  to  creditors,  or  in  asking 
instructions  of  the  court,  as  also  by  way  of  accounting  in  com- 
pliance with  the  law  and  the  terms  of  his  bond,  are  allowed, 
with  considerable  indulgence,  out  of  the  assets,  that  a  faithful 
representative  may  not  personally  suffer."*  These  considera- 
tions apply  to  taxing  court  costs,  or  to  the  fees  of  attorneys  and 


59  N.  H.  502.  Or  even  in  litigation 
bona  fide  upon  a  doubtful  claim  and 
unsuccessfully.  Polhemus  v.  Middle- 
ton,  37  N.  J.  Eq.  240. 

Some  States,  in  practice,  are  opposed 
to  giving  credit  for  attorney's  fees  paid 
by  the  fiduciary  to  a  firm  of  which  he  is 
a  member.  93  Ind.  121.  But  in  other 
States  a  fiduciary  who  is  also  a  profes- 
sional lawyer,  is  entitled  to  make  the 
usual  professional  charges,  provided  his 
whole  recompense  be  fair  and  reason- 
able.    70  Ala.  607. 

'  32  Ala.  227  ;  6  Greenl.  48 ;  6  Allen, 
494;  19  N.  H.  205;  35  Miss.  540;  31 
Penn.  St.  311  ;  28  Vt.  765  ;  4  Redf.  302. 

^  Supra,  §  314. 

'  Supra,  §  256 ;  McHardy  v.  Mc- 
Hardy,  7  Fla.  301  ;  Parker  v.  Day,  155 
N.  Y.  383. 

"■  Wms.  Exrs.  376,  594,  860,  1894  ; 
U.  S.  Digest,  I  St  series,  Executors  and 
Administrators,  3908-3935  ;  cases  su- 
pra ;  T^T)  Ala.  291;  8  Gill,  285.  One 
may  specially  limit  his  liability  by  a 
contract  that  the  attorney  shall  look  to 
the  estate  alone  for  payment.     58  Md. 


58.  As  to  the  liability  of  executors  or 
administrators  for  costs,  upon  a  non- 
suit or  a  verdict  against  them,  see  Wms. 
Exrs.  1894,  1897,  1980.  Costs  in  suits 
asking  directions  under  a  will,  etc.,  and 
in  such  other  amicable  litigation  as  may 
be  justifiable  under  the  particular  cir- 
cumstances, are  usually  allowed,  at  the 
court's  discretion,  out  of  the  estate. 
Wms.  Exrs.  376,  2034,  2038 ;  L.  R.  i 
P.  &  D.  655  ;  I  Paige,  214  ;  31  N.  J.  Eq. 
234;  159  Mass.  185.  And  to  such 
awards  probate  and  equity  courts  incline 
in  their  own  formal  practice.  In  pro. 
bate  causes,  in  some  States,  however 
(probate  proceedings  being  conducted 
somewhat  informally),  it  is  not  custo- 
mary to  allow  costs  to  either  party.  12 
Allen,  17 ;  7  Gray,  472.  And  see  4 
Redf.  I .  Local  practice  usually  deter- 
mines the  question  of  costs,  independ- 
ently of  external  jurisdictions. 

Contingent  fees,  or  fees  beyond  those 
taxable,  may  be  consistent  with  local 
practice.  2  H.  &  M.  9 ;  29  Miss.  72. 
But  legal  expenses,  and  the  reasonable 
fees  of  attorneys  or  counsel  employed 


706 


CHAP.  II.]  CHARGES  AND  ALLOWANCES  UPON  ACCOUXTINC;.  §  544 

counsel  in  or  out  of  court,'  and  to  proceedings  on  appeal  as  well 
as  in  the  original  jurisdiction.^ 

But  bills  for  legal  services,  counsel  fees,  and  the  costs  of  liti- 
gation, are  not  to  be  allowed  to  the  personal  representative  where 
the  expense  was  not  incurred  in  good  faith,  as  reasonably  cal- 
culated to  promote  the  benefit  of  the  estate.'  Nor  where,  in 
instituting  litigation  or  suffering  it  to  proceed,  or  in  managing 
the  cause  on  his  own  part,  the  representative  was  culpably  re- 
miss in  the  performance  of  the  duty  confided  to  him.''  Nor 
where  the  expense  was  incurred  by  him,  against  the  interests 
of  the  estate,  and  for  his  own  express  benefit  as  in  needless  and 
selfish  antagonism,  or  in  resisting  just  proceedings  against  him  ;5 
or  because  of  his  misconduct.^  Nor  for  services  in  connec- 
tion with  matters  which  lie  outside  the  range  of  his  official 
duty.7     Nor  where,  imprudently  or  dishonestly,  he  has  incurred 


in  good  faith,  are  thus  allowable ;  not 
money  paid  out  by  way  of  a  compromise. 
33  Ala.  291.  Each  case  must  stand  on 
its  own  merits  as  to  allowing  the  execu- 
tor or  administrator  for  costs  and  fees 
in  htigation.  9  Ala.  734  ;  31  Oreg.  86. 
The  representative  cannot  bind  the 
estate  by  a  promise  to  convey  a  portion 
of  the  land  recovered  by  suit  as  the 
attorney's  contingent  fee.  64  Ark.  438. 
Allowances  of  this  character  are  found 
regulated  by  local  statute.  Seman  v. 
Whitehead,  78  N.  Y.  306.  In  some 
cases  the  counsel  services  were  not 
really  rendered  to  the  representative  but 
upon  the  stipulation  of  the  widow  and 
sole  devisee.  Whether  the  representa- 
tive can  agree  to  give  an  attorney  half 
of  what  he  may  recover  by  getting  cer- 
tain fraudulent  transfers  by  the  decedent 
set  aside,  see  Piatt  v.  Piatt,  105  N.  Y. 
488.  Costs  made  by  claimants  in 
successfully  prosecuting  claims  against 
an  estate  are  not  expenses  of  adminis- 
tration.    Taylor  z/.  Wright,  93  Ind.  121. 

'  6  Thomp.  &  C.  211  ;  30  Ark.  520. 

^  Hazards^.  Engs,  14  R.  I.  5. 

3  O'Neil  V.  O'Donnell,  9  Ala.  734. 

*  Green  v.  Fagan,   15  Ala.  335.     As 

70 


where  the  representative  defended  a  suit 
properly  brought  against  him  by  reason 
of  his  delinquency.  Lilly  v.  Griffin,  71 
Ga.  535. 

5  Mims  V.  Mims,  39  Ala.  716; 
Stephens'  Appeal,  56  Penn.  St.  409; 
Cameron  v.  Cameron,  15  Wis.  i  ;  Dor- 
ris  V.  Miller,  105  Iowa,  564;  141  Mo. 
642  ;  122  Cal.  260;  107  N.  C.  278.  As 
where  an  executor  who  was  also  a  lega- 
tee contested  against  other  legatees  as 
to  his  own  legacy.  65  Cal.  287.  Where 
the  same  litigation  involved  points 
partly  for  the  executor's  personal  bene- 
fit and  partly  for  the  benefit  of  the 
estate,  the  costs  and  charges  should  be 
fairly  apportioned.  Clement's  Appeal, 
49  Conn.  519.  And  see  Kingsland  v. 
Scudder,  36  N.  J.  Eq.  284.  An  admin- 
istrator may  have  to  pay  all  costs  aris- 
ing on  just  exceptions  to  his  account, 
but  not  the  costs  of  settling  the  estate. 
58  Iowa,  36. 

^37  Ala.  683;  109  Mass.  541;  Si 
Penn.  St.  263;   109  Ala.  117. 

'  Lusk  V.  Anderson,  i  Met.  426 ;  2 
Bibb,  609 ;  17  Wash.  683 ;  80  Cal.  625  ; 
120  N.  C.  472,  Roberts's  Estate,  163 
Penn.  St.  408. 

7 


§    545  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

needless  expenditure  in  the  execution  of  his  trust ;  employing 
legal  services  where  none  were  required,  or  more  counsel  than 
was  reasonably  needful  and  proper,  or  settling  extravagant  fee 
bills  without  a  prudent  scrutiny.'  Nor  in  general  where  such 
services  were  unnecessary.  The  general  rule  is,  moreover,  that 
attorney's  fees  are  not  to  be  recovered  from  an  adverse  party,* 

Costs  or  counsel  fees  are  not  usually  to  be  credited  on  the 
representative's  accounts,  unless  he  has  paid  them.^  And  where 
an  attorney  performs  services  properly  belonging  to  the  repre- 
sentative himself,  compensation  for  both  of  them  cannot  reason- 
ably be  allowed.''  All  such  counsel  services  are  a  personal 
charge  to  the  representative  in  the  first  instance  according  to 
American  practice  ;  and  his  effort  is  to  have  them  allowed  him 
on  his  account. 5  In  various  important  instances  an  executor  or 
administrator  is  called  upon  to  employ  legal  counsel  and  may 
rely  upon  professional  advice  as  to  prosecuting  or  settling  a 
claim,  otherwise  performing  his  proper  duties ;  ^  but  he  does  not 
thereby  forego  his  own  duty  of  prudence  and  honor.^ 

§  545.    Compensation  of   Executors   and   Administrators.  —  As 

to  compensation,  the  long-estabUshed  English  rule  of  chancery 
has  been,  that  a  fiduciary  office  is  honorary  and  gratuitous. 
Hence,  the  executor  or  administrator  must  serve  without  recom- 
pense for  his  own  services,  being  strictly  forbidden  to  make 
profit  out  of  his  office.^ 

American  pohcy,  on  the  other  hand,  binds  the  executor  or 
administrator  closely  to  the  court  in  his  official  dealings  ;  but 

In  charging  commissions  as  executor  directly  to  the  attorney,  see  12  W.  Va. 

and  trustee,  one  should  clearly  indicate  427. 

where  the  former  capacity  ceases  and  "*  4    Dem.    333.      See    Kingsland   v. 

the  latter  begins.      McAlpine,  Re,   126  Scudder,  36  N.  J.  Eq.  284. 

N.  Y.  285.  5  3  Dem.  i. 

'  Crowder  t.   Shackelford,  35    Miss.  *  See  142  Mo.  187;  §  274;  99  Tenn. 

321  ;  Liddell  v.  McVickar,   11  N.  J.  L.  462. 

44.     And  see  Smyley  v.  Reese,  53  Ala.  '  Pryor  v.  Davis,  109  Ala.  117. 

89 ;  5  Dem.  244.  ^  Perry  Trusts,  §§  432,  904 ;  Robin- 

^  Dorris  z/.  Miller,  105  Iowa,  564.  .son  ?'.  Pett,  3  P.  Wms.  132;  Wms.  Exrs. 

3  Thacher  v.   Dunham,   5   Gray,   26;  1853.     A  consequence  not  unnatural  is, 

40  Ala.  391,  421.     As  to  allowing  them  that  the  labors   of  the  office  with  its 

708 


CHAP.   II.]    CHARGES  AND  ALLOWANCES  UPON   ACCOLXTINC.    §    545 

renders  the  judicial  proceedings  as  inexpensive  as  possible,  and 
remunerates  him  for  faithful  services ;  holding  him  bound,  in 
consequence,  to  fulfil  his  trust  with  a  just  sense  of  the  legal 
obligations  which  it  imposes.  It  discourages  the  idea  of  recom- 
pensing deputies  liberally  for  duties  which  the  representative 
may  himself  capably  render.  And,  compensation  being  thus 
allowed,  the  legal  liability  is  greater  ;  and  more  stress  is  laid 
upon  personal  qualifications  for  the  trust. 

Compensation  being  now  allowed  to  the  personal  representa- 
tive in,  perhaps,  every  State  in  this  Union,  upon  maxims  of 
sound  policy  which  our  most  eminent  equity  jurists  have  incul- 
cated,' it  becomes  matter  of  local  custom  or  enactment  what 
compensation  shall  be  reasonable.  In  many  States,  a  commis- 
sion on  the  amounts  received  and  paid  out  is  allowed  ;  an  excel- 
lent  basis   for   such  a  computation,  and,   perhaps,  universally 


responsibilities  become  shifted  unduly, 
where  the  estate  is  a  large  and  onerous 
one,  upon  solicitors,  proctors,  counsel, 
and  officers  of  the  court ;  so  that  the 
actual  representative  finds  himself  ad- 
ministering, not  unfrequently,  for  the 
peculiar  profit  of  those  whom  he  must 
trust  to  lead  him,  unless  he  can  keep 
the  business  out  of  the  courts  as  non- 
contentious. 

The  English  chancery  rule,  as  to 
trustees,  too,  has  been  very  strict,  that 
trustees  cannot  derive  direct  or  indirect 
profit  from  the  estate  they  represent ; 
that  they  cannot  be  factors,  experts, 
brokers,  receivers,  nor  even  make 
charges  against  the  estate  represented 
for  professional  services  rendered,  not- 
withstanding the  professional  or  expert 
knowledge  they  may  have  brought  to 
the  discharge  of  the  trust.  Perry  Trusts, 
§§  132,904.  Even  though  trustees  carry 
on  a  trade  under  the  testator's  direc- 
tion, they  can  charge  nothing  for  their 
services,  notwithstanding  the  perilous 
risks  they  incur.     Perry  Trusts,  §  906. 

But  it  has  been  found  necessary  to 
allow  compensation  in  British  colonies 
in  order  to  induce  suitable  men  to  ac- 


cept the  office ;  and  probably  with  the 
modern  development  of  wealth  in- 
vested in  personal  securities,  other 
exceptions  will  be  conceded  by  the 
English  Parliament.  See  as  to  trustees. 
Perry  Trusts,  §  904 ;  and  as  to  guar- 
dians, Schoul.  Dom.  Rel.  §  375. 

'  "  The  policy  of  the  law  ought  to  be 
such  as  to  induce  honorable  men,  with- 
out a  sacrifice  of  their  private  interests, 
to  accept  the  office."  2  Story  Eq.  Jur. 
§  1268  n.  And  see  Boyd  v.  Hawkins, 
2  Dev.  Eq.  334;  Perry  Trusts,  §  917- 
But  see  Chancellor  Kent  in  1  Johns. 
Ch.  37,  534.  Also  the  Delaware  rule 
as  applied  in  State  v.  Piatt,  4  Harring. 
154.  American  policy  is  in  favor  of 
granting  remuneration.  Perry  Trusts, 
§  917  ;  Schoul.  Dom.  Rel.  §  375  ;  Barney 
V.  Saunders,  16  How.  (U.  S.)  542  ; 
Clark  V.  Piatt,  30  Conn.  282 ;  Wms. 
Exrs.  1853,  Perkins's  note.  And  it 
may  also  be  said  that  while  executors 
are  selected  by  a  decedent  as  matter  of 
personal  trust  or  confidence  to  adminis- 
ter, an  administrator  is  appointed  to 
perform  duties  without  any  such  essen- 
tial relation  to  the  estate  represented. 


709 


§  545 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


approved  in  this  country,  wherever  a  fiduciary's  recompense  is 
passed  upon.'  But  as  such  a  rule  meets  routine  rather  than 
extraordinary  services,  our  later  cases  appear  inchned  to  allow 
to  an  executor  or  administrator,  besides  the  usual  commission, 
a  moderate  charge  for  professional  and  personal  services  spe- 
cially rendered  by  him,  where  such  skill  was  needed  and  bestowed, 


'  The  allowances  made  for  the  com- 
pensation of  executors  and  other  fidu- 
ciary officers  varies  in  different  States  ; 
but  the  local  statutes  on  the  subject  are 
digested  in  Perry  Trusts,  §  918,  and 
notes.  In  the  larger  number  of  States 
the  compensation  is  by  way  of  a  com- 
mission, which  may  vary,  according  to 
circumstances,  from  one  to  ten  per  cent., 
which  last  is  usually  the  maximum. 
The  New  York  nile  established  is  five 
per  cent,  on  sums  not  exceeding  one 
thousand  dollars ;  half  that  amount 
upon  all  sums  between  that  and  five 
thousand  dollars;  and  one  per  cent,  on 
sums  exceeding  that  amount.  3  Johns. 
Ch.  43.  This  rule  practically  obtains 
in  other  States  as  fixing  on  the  whole  a 
fair  average  rate.  One-half  the  com- 
mission is  for  sums  received,  and  the 
other  half  for  sums  disbursed.  The 
New  Jersey  statute  fixes  a  higher  rate 
of  commi.s-sions.  Perry  Trusts,  §  918, 
note.  Three  and  a  half  commission 
upon  an  estate  of  nearly  ^300,000  was 
not  thought  excessive  where  the  execu- 
tors had  to  carry  on  litigation,  and  sell 
real  estate  under  a  power.  39  N.  J. 
Eq.  270.  And  courts  have  been  even 
more  liberal  than  this.  189  Penn.  St. 
385.  But  in  an  e.state  of  $500,000, 
whose  settlement  gave  very  little  trouble, 
two  per  cent,  was  thought  enough. 
37  N.  J.  Eq.  578.  And  so  is  it  in  vari- 
ous other  States.  Perry,  ib.  See  28 
La.  Ann.  638;  11  Phila.  (Pa.)  26,  39, 
92;  2  Redf.  244,  255,  312,  465.  Cf.  18 
R.  I.  120.  Commissions  on  credits  or 
a  set-off,  where  a  claim  is  adjusted,  are 
not    favored;    that    should     rather    be 

71 


computed  on  the  balance  ;  and  commis- 
-sions  on  a  debt  owing  by  or  to  the 
representative  himself  should  be  disal- 
lowed. 85  Penn.  St.  398  ;  38  Tex.  109 ; 
Double  and  contemporaneous  com- 
missions on  a  constructive  change  of 
capacity  are  in  New  York  treated  with 
disfavor.  Johnson  v.  Lawrence,  95 
N.  Y.  154.  And  so,  too,  Thom  v. 
Thorn,  95  Va.  413.  But  executors  tak- 
ing a  fund  as  trustees  are  entitled  to 
commissions  in  each  consecutive  capac- 
ity. 39  N.  J.  Eq.  493 ;  42  N.  J.  Eq. 
361  ;  Willets,  Re,  112  N.  Y.  289.  The 
executor  or  administrator  may  claim 
commissions,  even  though  the  property 
received  remains  in  his  hands  in  the 
same  state  as  when  he  received  it.  3 
Dem.  289.  Full  commissions  in  good 
money  cannot  be  charged  upon  collec- 
tions made  in  depreciated  currency. 
75  Ala.  162.  Nor  can  commissions 
be  charged  on  what  the  representative 
owes  to  the  estate.  156  Penn.  St.  473. 
As  to  fixing  the  statute  rate  of  compen- 
sation on  income,  see  2  Dem.  257.  An 
executor  cannot  usually  claim  compen- 
sation or  commissions  for  turning  over 
specific  bequests  to  the  persons  entitled 
to  them.  I  Dem.  296.  Nor  can  com- 
missions be  claimed  on  tru.st  funds  of 
decedent.  169  111.  93.  Nor  on  the 
principal  items  of  a  large  transaction  of 
the  decedent,  which  the  representative 
closes  out  by  merely  receiving  a  balance. 
Hitchcock  V.  Mosher,  106  Mo.  578. 
For  commissions  are  properly  computed 
upon  what  one  administers ;  not  upon 
the  gross  personalty  as  the  decedent 
owned  it.  Ib.  Cf.  145  Penn.  St.  459. 
O 


CHAP.   II.]   CHARGES  AND  ALLOWANCES  UPON   ACCOUNTINC   §   545 

and  where  he  was  capable  of  bestowing  it ; '  and  such  is  the  pos- 
itive rule  of  some  States.-  Each  local  rule  is  based  largely 
upon  local  statutes.  Such  services  are  sometimes  estimated 
by  the  court  in  fixing  the  commission  ;  but  in  most  New  Eng- 
land States  where  the  court  is  empowered  to  allow  what  is  rea- 
sonable, specific  sums  may  be  charged  for  special  services  in 
addition  to  the  usual  commission,  or  in  li„u  thereof,  provided 
the  whole  does  not  exceed  a  fair  rate  of  compensation  ;  and  the 
court    may   vary  the   allowance    according    to   circumstances.^ 


'  Wendell  v.  Wendell,  19  N.  H.  210; 
1 1  Phila.  95.  In  New  Hampshire, 
Maine,  and  Vermont,  the  court  gives  a 
per  diem  compensation  for  time,  travel, 
labor,  etc.  Perry  Trusts,  §  918.  Where 
an  executor  gave  much  time  to  manag- 
ing and  carrying  on  farms  belonging  to 
the  estate,  he  was  allowed  a  reasonable 
compensation  for  this  service,  besides 
the  usual  commissions  as  executor. 
70  Vt.  458;  Lent  V.  Howard,  89  N.  Y. 
169. 

And  see  for  extra  allowance  under 
peculiar  circumstances  of  difficulty  and 
responsibility,  113  Mich.  561.  Such 
allowance  is  usually  discretionary  with 
the  court.     lb. 

-  See  statute  cited  in  90  Wis.  236. 
In  order  to  recover  for  extraordinary 
services,  it  must  appear  that  they  were 
necessary,  and  that  the  usual  compen- 
sation is  insufficient.  93  Iowa,  303. 
For  uncollectible  debts,  specific  compen- 
sation, not  a  commission,  should  be  the 
recompense.  40  W.  Va.  161.  See 
further,  98  Mich.  319;  Hodgman  Re, 
140  N.  Y.  421. 

3  Longley  7,'.  Hall,  11  Pick.  120; 
Emerson,  Appellant,  32  Me.  159  ;  Roach 
V.  Jelks,  40  Miss.  754  ;  Evarts  v.  Nason, 
II  Vt.  122;  Clark  v.  Piatt,  30  Conn. 
282. 

A  gross  sum  should  not  be  charged 
generally  for  services,  without  some 
specification  of  particulars.  41  Ala.  267. 
But  a  gross  sum  is  permitted  to  be 
charged  in  some  States.    Charging  more 

71 


than  the  statutory  remuneration,  for  serv- 
ices to  heirs,  etc.,  is  not  permitted. 
59  Mo.  585 ;  6  Rich.  Eq.  2.  As  to  the 
Illinois  rule,  which  treats  claims  for 
professional  service  with  disfavor,  see 
Hough  V.  Harvey,  71  111.  72. 

Where  a  will  directs  a  six  per  cent, 
commission  allowed  upon  "all  moneys 
collected,"  this  means  "collections" 
merely,  and  does  not  embrace  the  entire 
estate.      Ireland   v.    Corse,   67    N.    Y. 

343- 

Real  estate  may  be  properly  con- 
trolled by  the  representative  and  a  com- 
mission allowed.  Eshleman's  Appeal, 
74  Penn.  St.  42;  70  Ala.  575;  70  Cal. 
69;  118  Cal.  462.  For  the  rule  of 
commissions,  where  an  incumbrance  is 
discharged  and  applied  to  a  claim,  see 
36  Tex.  116;  30  Ark.  520;  42  Ohio  St. 
53.  And  see,  as  to  selling  lands  under  a 
power,  24  Hun,  109 ;  Twaddell's  Appeal, 
81*  Penn.  St.  221  ;  38  N.  J.  Eq.  405. 
On  a  sale  of  real  e.state,  a  commission 
exceeding  two  and  one-half  per  cent,  is 
rarely  allowable.  1 1  Phila.  53.  Com- 
missions based  on  a  constructive  pos- 
session of  assets,  and  not  actual,  are 
not  favored.  51  Miss.  211;  30  Ark. 
520.  And  thus  is  it  as  to  merely  con- 
structive dealings  with  the  decedent's 
real  estate.  43  W.  Va.  296.  Or  with 
no  such  dealings  at  all.     17  Wash.  675. 

As  to  an  administrator  de  bonis  iioit 
and  his  commissions,  see  Myrick  Prob. 
163.  Special  administrators  are  not 
usually  entitled  to  full  commissions.  41 
I 


§  545 


EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 


Claims  for  special  allowances  should,  however,  always  be  closely 
scrutinized,  as  the  representative  here  employs  himself,  so  to 
speak  ;  all  items  improper  should  be  disallowed,  and  exorbitant 
amounts  reduced. 

Commissions  and  compensation  may  be  forfeited  by  the  rep- 
resentative's misconduct  and  culpable  remissness  in  his  trust.' 
And,  if  one  has  been  appointed  on  a  distinct  understanding  with 
those  interested  to  serve  as  executor  or  administrator  without 
recompense,  or  at  a  stated  compensation,  he  must  abide  by  his 
engagement.-     But  as  a  general  rule,  an  honest  and  prudent 


Ala.  267  ;  67  Mo.  415.  Co-executors  or 
co-administrators  are,  as  a  rule,  entitled 
to  share  the  commissions  equally.  4 
Abb.  App.  Dec.  578 ;  40  N.  J.  Eq.  517  ; 
Squier  v.  Squier,  30  N.  J.  Eq.  627. 
But  they  may  arrange  with  one  another 
as  to  duties  and  compensation.  See  4 
Md.  Ch.  368;  8  Md.  548;  §  545,  note. 
And  a  survivor  of  co-representatives 
may  be  favored,  who  has  done  all  the 
work.  87  Md.  43.  And  so  otherwise  the 
quantjitn  and  value  of  each  one's  serv- 
ices may  be  considered.  4  Dem.  463  ; 
88  Mich.  614.  A  public  administrator 
who  seeks  an  appointment,  knowing 
that  by  law  he  is  not  entitled,  can  claim 
no  recompense.     27  La.  Ann.  574. 

As  to  executors  who  are  testamentary 
trustees,  and  their  commissions,  see  4 
Redf .  34  ;  1 1  Phila.  80. 

Concerning  the  time  when  commis- 
sions should  be  computed,  see  Drake  v. 
Drake,  82  N.  C.  443.  One  should  not 
appropriate  his  commissions  until  they 
have  been  allowed;  but  he  may  retain 
funds  to  meet  them.  Wheelwright  v. 
Wheelwright,  2  Redf.  501.  See  further, 
Harrison  v.  Perea,  168  U.  S.  3k. 

Although  one  may  be  surcharged  for 
some  improper  expenditure,  yet  his 
good  and  beneficial  management  on  the 
whole  may  entitle  him  to  full  recom- 
pense.    166  Penn.  St.  121. 

■  Brown  v.  McCall,  3  Hill,  335  ;  Hap- 

71 


good  v.  Jennison,  2  Vt.  294 ;  3  Green, 
51  ;  Clauser's  Estate,  84  Penn.  St.  51  ; 
Eppinger  v.  Canepa,  20  Fla.  262 ;  36 
La.  Ann.  420.  Neglect  to  render  ac- 
counts until  citation  does  not  necessarily 
forfeit  commissions,  though  it  is  an  un- 
favorable circumstance.  Barcalow,  Jie, 
29  N.  J.  Eq.  282.  See  10  S.  C.  208 ;  4 
Redf.  34  ;  94  N.  C.  720.  One  may  for- 
feit commissions,  and  yet  be  entitled  to 
a  reasonable  recompense.  3  Green,  51. 
One  who  discharges  his  duties  faithfully 
and  -ft-ith  advantage  to  the  estate,  does 
not  forfeit  commissions  for  keeping  on 
hand  larger  amounts  than  he  ought ; 
though  this  might  make  him  chargeable 
for  interest  on  the  excess  thus  lying 
idle.  Frost  v.  Denman,  41  N.  J.  Eq. 
47.  One  may  be  entitled  to  commis- 
sions or  compensation  and  yet  have  to 
pay  interest.  Supra,  §  538.  See  fur- 
ther, 42  N.  J.  Eq.  337 ;  Stevens  v. 
Melcher,  152  N.  Y.  551.  As  to  the 
effect  of  a  statutory  change  in  the  rule, 
see  64  Md.  517. 

^  Davis,  Re,  65  Cal.  309.  It  is  imma- 
terial that  such  promise  was  not  made 
with  all  parties  interested.  Bate  t. 
Bate,  1 1  Bush,  639.  But  the  agreement 
of  one  executor  to  waive  commissions 
cannot  prejudice  the  right  of  his  co- 
executor.  14  Phila.  290 ;  §  401.  See 
146  Mo.  436. 


CHAP.    II.]   CIIARGE.S   AND  ALLOWANCES   UPON  ACCOUNTINCi.    §    546 

fiduciary  is  entitled  to  his  just  recompense  ; '  and  while  one  re- 
mains honest  and  prudent  he  may  be  allowed  recompense,  even 
though  his  subsequent  maladministration  should  debar  all  claim 
for  continuing  such  allowance.^ 

For  illegal  allowances  voluntarily  made,  the  executor  or  ad- 
ministrator is  responsible  to  the  estate.' 

§  546.  General  Matters  as  to  Charges  and  Allowances,  Be- 
quest in  Lieu,  etc.  —  A  few  points  may  here  be  added.  An 
administration  account,  rendered  in  the  probate  court  for  settle- 
ment, is  said  to  be  in  the  nature  of  a  declaration  in  a  writ ;  so 
that,  unless  amended  by  order  of  court,  a  greater  sum  than 
actually  charged  cannot  be  allowed  to  the  representative,  either 
in  that  court  or  upon  appeal."*  But,  as  to  commissions  and 
interest,  the  probate  practice,  in  some  States,  is  to  omit  such 
items  when  the  accounts  are  presented,  so  as  to  allow  them  to 
be  entered,  or  the  amounts  carried  out,  upon  the  hearing  be- 
fore the  judge  of  probate.^  In  making  up  a  final  account,  items 
for  subsequent  expenditure  may  be  specified  by  way  of  anticipat- 
ing payment,  and  the  balance  struck  accordingly.*"  And  it  may 
be  just  and  proper  to  defer  the  complete  recompense  until  the 
complete  performance  of  one's  duties,  so  that  only  partial  recom- 
pense shall  be  allowed  at  intermediate  periods.^ 

A  bequest  to  an  executor  may  be  made  in  full  of  compensa- 
tion for  his  trust  ;  '^  but  unless  the  language  of  the  will  shows 
that  the  bequest  is  to  be  by  way  of  specific  compensation,  this 
does  not  deprive  him  of  the  right  to  charge  commissions.'^  Nor 
does  the  fact  that  an  administrator  is  also  a  distributee  compel 
him  to  treat  his  distributive  share  as  his  recompense  for  ordinary 


'  Pryor  z>.   Davis,  109  Ala.  117  ;   166  *  See  Hone  v.  Lockman,  4  Redf.  61, 

Penn.  St.  121.  as  to  adding  items  of  receipts  and  e.x- 

^  Foster  v.  Stone,  67  Vt.  336.  penditures  subsequent  to  filing  the  final 

3  As  where  he  allows  to  his  intestate's  account, 

surviving  partner  for  personal  services  '  See  49  N.  J.  Eq.  549. 

in  the  business.     Loomis  t'.  Armstrong,  *  See  provision  of    such  a  will  in  38 

49  Mich.  521.  N.  J.  Eq.  405. 

^  Pettingill  7j.   Pettingill,  64  Me.  350.  '  Mason,  iVf,  98  N.  Y.  527. 

■  Lund   7'.  Lund,   41    i\.  H.  355,  364; 
113  Mich.  561. 


§   547  EXECUTORS    AND    ADMINISTRATORS.  [PART  VII. 

services.  The  right  to  retain  commission  or  compensation  does 
not  properly  accrue  until  the  account  has  been  submitted  and 
allowed.'  American  practice  in  these  days  does  not  favor  the 
deprivation  of  an  executor's  fair  rights  by  anything  the  will 
itself  may  contain,  even  though  this  executor  should  probate 
the  will.  It  is  held  that  a  testator  cannot  take  away  his  execu- 
tor's recompense  by  restrictions  thus  attempted ;  for,  where 
there  has  been  full  and  just  administration,  even  the  court  has 
no  power  to  deprive  the  fiduciary  who  settles  the  estate  of 
the  minimum  compensation  which  the  law  gives  him.^  Our 
local  statutes  sometimes  permit  executors  to  elect  between  the 
commissions  fixed  by  law  and  any  testamentary  provision  in 
lieu  thereof.^ 

Where,  however,  an  executor  accepts  his  office  with  deliber- 
ate knowledge  that  the  will  has  fixed  his  recompense  for  such 
services,  he  is  usually  to  be  held  bound  thereby.'' 

§  547-    Accounts    and    AlloTvances,  as  to  Foreign   Assets.  —  A 

foreign  executor  or  administrator  cannot  be  compelled  to  ac- 
count, unless  he  has  brought  assets  into  the  domestic  jurisdic- 
tion ;  nor  then,  necessarily,  as  one  answerable  to  the  local  pro- 
bate court  and  not  rather  in  chancery,  on  general  maxims.5 
The  expenses  attending  a  sale  of  lands  in  a  foreign  jurisdiction, 
or  the  taxes  paid  on  such  real  estate,  are  not  properly  allowed 
upon  an  administration  account  rendered  in  the  domestic  forum.'' 

'  4  Dem.  463.  Where  letters  testamentary  upon  the 

^  Handy    v.     ColHns,    60    Md.    229.  estate   of   a    resident    of    some    other 

But   no  commissions  are  allowable  on  State  are  granted  in  that   State  to   a 

a  debt  due  by  the  executor  to  the  testa-  citizen  of  Pennsylvania,  the  Pennsylva- 

tor,  and  by  the  latter  specifically  be-  nia  courts   have   refused  to   take   any 

queathed  to  the  former.     lb.  jurisdiction  to  compel  the  settlement  of 

^  I  Dem.  244,  337.  his  accounts   or  to  entertain  a  bill  in 

■•Hays's  Estate,   183   Penn.   St.  296;  equity  to  charge  him  with  assets,  be- 

98  N.  Y.  527.  fore  his  accounts  have  been  settled  in 

^  Kohler  v,  Knapp,  i   Ikadf.  (N.   \ .)  such  other  State,  showing  a  balance  in 

241  ;  supra,  §§  1 73-180.  his  hands.     Musselman's  Appeal,    101 

''I   Root,    182;  Roberts  v.   Roberts,  Penn.  St.  165. 
28  Miss.  152;  Jennison  t'.  Hapgood,  10 
Pick.  77. 

7^4 


APPENDIX. 

REMEDIES  BY  AND  AGAINST  EXECUTORS  AND 
ADMINISTRATORS. 

In  the  course  of  the  present  volume  we  have  touched  upon  all  the  usual  reme- 
dies to  be  pursued  by  or  against  executors  and  administrators.  As  the  reader 
has  doubtless  observed,  English  practice  favors  bringing  all  the  assets  of  the  es- 
tate, together  with  the  personal  representative,  into  the  court  of  chancery  ;  there 
to  have  the  administration  practically  controlled  and  directed,  unless  the  parties 
interested  are  satisfied  that  their  rights  will  be  duly  respected  by  a  settlement  out  of 
court ; '  while,  according  to  the  American  system,  chancery  is  seldom  resorted  to 
where  the  local  probate  jurisdiction  is  adequate,  and  the  security  chiefly  reUed 
upon  by  creditors,  legatees,  and  other  interested  parties,  is  the  probate  bond,  filed 
by  the  personal  representative,  which  obliges  him  not  only  to  administer  properly, 
but  to  render  regular  accounts  in  the  probate  court  besides.^  It  is  the  bill  in 
equity  upon  which  those  interested  in  the  estate  who  distrust  the  personal  repre- 
sentative, or  seek  redress  against  his  mismanagement,  must  chiefly  rely,  where  an 
English  estate  is  administered ;  but  where  the  estate  is  American,  a  probate  court 
affords  chief  protection,  requiring,  as  it  may,  ample  sureties  to  be  furnished  when 
such  precautions  appear  desirable,  and,  in  all  cases  of  official  delinquency,  per- 
mitting the  representative's  bond  to  be  prosecuted  for  the  benefit  of  the  interested 
parties.'  As  to  remedies  of  this  nature,  little  need  be  added,  except  to  refer  the 
practitioner  to  general  rules  of  practice,  as  laid  down  in  all  elementary  works  of 
equity  or  common  law,  with  a  further  express  reference  to  the  codes  of  his  own 
State,  for  copious  details  in  which,  as  independent  local  courts  expound  such 
legislation,  American  jurisdictions  by  no  means  harmonize. 

But,  in  both  English  and  American  practice,  it  frequently  occurs  that  the  per- 
sonal representative  should  sue  or  be  sued  in  a  common-law  court ;  and  upon  this 
topic  there  remains  something  to  be  said.  Here,  as  already  suggested  to  the 
reader  more  than  once,  the  fundamental  difficulty  in  our  practice  is,  that  in  some 
instances  the  representative  should  sue  or  be  sued  in  his  official  capacity,  in  others 
in  his  personal  capacity ;  while,  in  an  intermediate  class  of  cases,  there  appears 
an  option  given  for  a  suit  in  either  capacity.*  The  essential  reason  for  this  dis- 
tinction is,  that  our  law  of  administration  regards  the  contract  of  an  executor  or 
administrator  as  binding  himself  individually,  unless  made  under  an  express  reser- 
vation that  only  assets  shall  be  resorted  to;  the  real  object  being  to  allow  assets 
to  be  strictly  applied  to  claims  in  a  regular  course  of  administration,  so  that  the 
personal  representative  may  not  create  liens  or  preferences  in  favor  of  those  with 
whom  he  deals.  However  commendable  this  rule,  its  application  makes  much 
difficulty  in  the  courts;  for  an  action,  grounded  in  a  good  cause,  may  be  thrown 

"■Supra,  §§  518,  521.  ^ Supra,  §§  136,  139. 

^  Sttpra,  §§  520,  522.  *  Supra,  §§  137,  140. 


yi6  APPENDIX. 

out  because  of  some  misconception  in  the  plaintiff's  mind  as  to  how  that  cause 
originated,  and  in  what  capacity  the  representative  should  be  made  a  party  to  the 
suit.'  Let  us  trace  the  distinction  into  remedies  by  or  against  the  personal  rep- 
resentative. 

(i)  As  to  suits  by  the  executor  or  administrator.  Here  the  difficulty  is  the  less, 
because  of  a  liberal  option  which  our  law  concedes.  "Where  the  cause  of  action 
originated  in  the  time  of  the  deceased,  the  representative  sues  in  the  detinet  only, 
or  in  his  representative  capacity.  But  where  the  cause  accrues  after  the  death  of 
the  testator  or  intestate,  the  executor  or  administrator  may  sue  as  such  or  not  at 
hi.s  option;  and,  whenever  the  fruits  of  the  suit  must  be  assets,  he  may  sue  in  his 
representative  character,  though  the  cause  originated  in  his  own  contract.-  Even 
though  he  call  himself  "  executor  "  or  "  administrator  "  in  the  action,  if  it  appears 
that  the  cause  of  action  is  in  his  own  right,  the  representative  word  may  be 
stricken  out  as  surplusage ;  ^  and  even  matters  of  substance  are  aided  after  de- 
fault or  a  verdict  in  his  favor.* 

(2)  As  to  suits  against  the  executor  or  administrator.  It  is  here  that  the  rigor 
of  the  common-law  rule  is  more  strongly  manifested.  Where  a  defendant  is 
simply  misdescribed  as  "executor"  or  "administrator,"  the  descriptive  word  may 
be  stricken  out  as  surplusage,  and  a  judgment  rendered  against  him  individually. 
But  where  he  is  sued  as  executor  or  administrator,  and  the  whole  pleadings  show 
that  conception  of  his  liability,  when  he  should  have  been  sued  as  an  individual, 
the  variance  is  held  fatal  to  the  suit.'  For  the  judgment  follows  the  complaint ; 
and  if  the  cause  is  maintained  successfully  against  one  in  his  representative  char- 
acter, the  debt,  damages,  and  costs  are  to  be  levied  de  bonis  decedcntis.'^  The  ac- 
tion cannot,  strictly  speaking,  be  converted  into  one  against  the  defendant  per- 
sonally, if  wrongly  begun  ;  nor  can  counts  be  joined  as  of  causes  originating 
against  the  deceased  and  against  the  representative;  but,  for  a  suit  on  the  repre- 
sentative's own  contract,  the  judgment  is  against  him  as  an  individual,  or  de  bonis 
fropriisP  The  practice  in  some  States  appears  to  change  this  rule,  however,  so 
as  to  give  greater  freedom  in  suing  in  the  alternative,  and  adapting  the  judgment 
accordingly ;  ^  and  such  modifications  of  the  old  doctrine  appear  highly  desirable 
in  the  interests  of  justice. 

We  may  add  a  few  words  as  to  common-law  suits  against  the  executor  or  ad- 
ministrator. When  sued  in  his  representative  character,  the  defendant  who  in- 
tends to  deny  his  being  such,  should  specially  plead  ne  unques  executor  or  ne  ungues 
adyninisirator!^  But  the  proper  plea,  where  he  has  not  assets  as  representative,  is 
plene  adtninistravit}°  These  pleas  are  sometimes  artificially  employed,"  but  they 
are  not  necessarily  false  pleas.  And,  as  observed  in  a  recent  case,  unless  the  exec- 
utor or  administrator  falsely  pleads /Av/c  adjninistraint,  he  is  not  liable  to  a  judg- 

'  Supra,  §  396.  ^  See  Wm.  Exrs.  1937-1939- 

^  Wms.  Exrs.  1871  ;  j-«/ra,  §290.  *  Wms.    Exrs.     1937,     Perkins's    «.; 

3  Wms.  Exrs.  1872.  Davis  v.  Vansands,  45  Conn.  600.     But 

■•  lb.  cf.  47  N.  Y.  360. 

5  See  Austin  v.  Munro,  47  N.  Y.  360,  '  Wms.  Exrs.  1943. 

opinion  of   court;    5  East,    150.     And  '"  Wms.  Exrs.  1953.    If  he  has  assets, 

see  59  Kan.  568.  but  not  enough,  he  pleads //i-;/^  admin- 

^47  N.    Y.   360;   Smith  z/.   Chapman,  tsira-.'it praeter,  %Xc. 

93  U.  S.  41  ;  Wms.  Exrs.  1937.  "  Supra,  §  187. 


APPENDIX. 


717 


ment  beyond  assets  in  his  hands  to  be  administered."  A  full  and  lawful  adminis- 
tration previous  to  such  suit,  or  the  utter  want  of  assets  to  respond  to  the  demand, 
is  a  good  defence ;  and  judgment  de  bonis  decedcntis  is  the  only  kind  to  which  the 
plaintiff  would  be  thus  entitled.  But,  devastavit  being  averred  and  proved  on  the 
representative's  part,  or  assets  being  shown  to  have  existed  which  ought  to  be 
applied  to  the  plaintiff's  claim  and  which  cannot  be  found,  the  court  may  order 
the  judgment  levied  out  of  the  representative's  own  proper  goods.- 

'  Smith  V.  Chapman,  93  U.  S.  41.  one  by  an  action  of  debt  on  the  judg- 

Mb.;  Wms.Exrs.  1975,  1987.     When  ment    obtained    against   him,    and    the 

an   executor  or  administrator  has  com-  other  by  a  scire  facias  founded  thereon. 

mitted  a  dcvastavit,ihex&  are  lyio  modes  3  Head,  575;  Wms.  Exrs.  1984,  1987. 

of  proceeding  to  render  him  liable;  the 


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718 


INDEX. 


A. 

ABSENTEE.  Section 

administration  as  to 109,  115,  133,  135,  154 

legacy  of 484 

distribution  as  to 503 

ACCOUNTING, 

obligation  of  representative  to  keep  accounts (,18  ei  sty. 

creditors'  bills;  equity  practice  as  to  compelling  account  .     .  519,  520 

ecclesiastical  and  probate  jurisdiction  of  accounts  in  England        .     .  521 

probate  jurisdiction  of  accounts  in  the  United  States 522 

citation  of  parties  interested  in  the  account ;  their  assent  to  its  allow- 
ance    523 

form  of  administration  account 524 

authentication  and  proof  of  account  in  American  practice    ....  525 

periodical  returns;  partial  accounts  and  the  final  account     ....  526 

settlement  upon  a  final  accounting ;  distribution,  etc 527 

conclusiveness  of  final  settlement  in  probate  court 528 

perpetuating  evidence  of  distribution  and  procuring  final  discharge    .  529 

appellate  jurisdiction  as  to  probate  accounting 530 

rendering  accounts  in  case  of  death,  resignation,  removal,  etc.  .     .     .  531 

accounts  by  co-executors  or  co-administrators 532 

effect  of  lapse  of  time  upon  accounts •     •     ■     .  533 

no  account  required  from  residuary  legatee  giving  bond  to  pay  debts, 

etc 534 

what  is  to  be  charged  to  representative  and  what  allowed  on  account  535 
should  charge  with  inventory  value  as  a  basis  ;  corrections,  etc.     .     .  536 
amounts  to  be  added;  assets  not  inventoried;  profits,  income,  pre- 
miums, etc 537 

charging  the  representative  with  interest 538 

charges  on  account,  as  concerns  real  estate,  its  profits,  etc 539 

charges  on  account ;  miscellaneous  points 540 

allowances  to  the  representative ;  disbursements,  losses,  etc.     .     .     .  541 

reasonable  expenses,  etc.,  allowed 542 

expenses  of  education,  maintenance,  advancements,  etc 543 

allowance  of  counsel  fees,  costs,  etc 544 

compensation  of  executors  and  administrators 545 

general  matters  as  to  charges  and  allowances 54^ 

bequest  in  lieu  of  recompense 54^ 

accounts  and  allowances  as  to  foreign  assets 547 

ACTIONS.     See  also  Appendix. 

as  to  executor  a?'^j<?« /c?r^  or  intermeddler 187  c-i  set/. 

719 


720  INDEX. 

ACTIONS — continued.  Section 

admissions  by  representative 26^ 

bills  of  administration,  etc 264 

interpleader  for  instructions 265 

transactions  barred  by  lapse  of  time 268^ 

discovery  of  assets,  embezzlement,  etc 270,  271 

modes  of  discovering  assets  ;  suspected  persons 270,271 

actions  by  executor  or  adniiniitrator. 

sviing  to  recover  assets  ;  survival  of  actions 277 

actions  founded  in  contract  obligations  survive  ;  exceptions  277,  278 

actions  founded  in  injury  to  person  or  property  died  with  the  person     279 

later  variations  of  rule ;  modern  statutes,  etc 279,280 

actions   founded   in    wrongful    possession    or    detention ;    replevin, 

detinue,  etc 281,  282 

action  for  damages  in  causing  death       283 

actions  founded  in  wrong  done  to  real  estate 284 

actions  upon  covenants  real,  etc 285 

suit  on  breach  of  covenant  in  deed  or  lease 286 

action  for  disturbing  possession ;  pew,  lease,  etc 287 

general  principle  of  suits  for  assets ;  whether  as  individual  or  repre- 
sentative         288-290,  293 

principle  applied  to  torts  affecting  the  property 291 

suits  on  contracts  made  with  the  representative 292 

suits  on  promissory  note,  negotiable  instruments,  etc 293 

prosecuting  suits  in  equity  with  reference  to  assets       ....       295-297 

distraining  or  suing  for  rent  in  arrears 301 

actions  against  decedent  or  his  representative. 

survival  of  action  founded  in  decedent's  contract 366-369 

or  tort        370-373 

for  rent,  damage  to  real  estate,  etc 374-376 

waste  or  devastavit  by  representative 382-385,  398*^ 

instances  of  devastavit,  etc 386-394 

representative,  how  sued  upon  his  own  contracts 395-397 

suing  for  funeral  expenses,  etc 398,421-424 

suing  on  negotiable  instrument 398a 

action  for  waste 39^*^ 

actions  by  or  against  co-executors  and  co-administrators      .     .       303,  404 

administrator  with  will  annexed 407 

administrator  a',?  ^^«M  «wi 408-412 

actions  by  or  against  special  or  temporary  administrators,  etc.      .     .     414 
equity  suits  for  settlement,  against  successive  representatives  .     .     .     416 

creditors'  bills  in  equity,  etc 437 

See  Cl.m.mh. 

bill  of  interpleader  for  construction  of  will,  etc 473 

levy  of  execution  on  land  of  decedent 5 '7 

creditors' bills  ;  equity  proceedings  to  compel  account      .     .     .      519,520 
remedies  by  and  against  executors  and  administrators.  Appendix. 
See  Courts. 


INDEX. 


721 


ADMINISTRATION,  s,£,i„„ 

how  estates  of  the  deceased  are  settled  ;  main  objects i 

modern  theory  of  judicial  supervision 1 

death  fundamental  to  jurisdiction ;  survivorship la 

settlement  of  estates  testate  or  intestate 2 

executors  and  administrators  and  their  functions 2 

affects  personal  property;   whether  real  estate  affected 5 

succession  in  civil  law 6 

testacy  preferred  to  intestacy  in  civil  and  common  law         ....         7 

former  abuses  in  spiritual  courts  as  to  administration 7 

jurisdiction,  EngHsh  and  American,  considered        7-14 

See  Courts. 

foreign  and  domestic ;  questions  of  comity,  etc 1 5-20 

last  domicile  gives  jurisdiction 22 

locality  of  personalty  or  bona  iiotabilia  may  confer  jurisdiction  aside 

from  domicile 24-26 

questions  of  double  jurisdiction 24-26 

case  where  right  of  action  is  created  by  local  statute 26 

whether  locality  of  real  estate  can  confer  jurisdiction       27 

constitutional  points  ;  each  State  exercises  jurisdiction    ....      28,  29 

only  interested  parties  regarded 29^ 

letters,  etc.,  in  case  of  intestacy 90  <:/  seq. 

See  Administrators;   Appointment. 

letters  of,  are  credentials  of  authority 351 

revocation  of  letters;  new  appointment,  etc 150-167 

See  Appointment. 

foreign  and  ancillary 162  et  seq. 

See  Conflict  ok  Laws. 
officiating  without   appointment;   intermeddler;    exQCMior  de  son  tort 

184-193,  197 
See  Appointment. 
acts  done  by  a  rightful  representative  before  qualifying        .     .     .  195,  196 

the  property  to  be  administered  upon igS  et  seq. 

See  Assets. 

inventory  of  the  estate 229-237 

See  Inventory. 
general  powers,  duties  and  liabilities  of  exectitors  and  administrators 

as  to  personal  assets 238  et  seq. 

title  to  personal  property  devolves  upon  representative  by  relation 

from  decedent's  death  ;  Hability,  etc 238 

representative's  title  and  authority  during  administration    excludes 

that  of  all  others  in  interest 239 

executor    or    administrator    has    power    to   dispose  of   personal   as- 
sets     240,  241 

executors  and  administrators  distinguished  in  this  respect    ....     241 
but  title,  etc.,  of  executor  or  administrator  is  by  way  of  trust    .     .  242 

identity  of  assets  should  be  preserved ;   title  intact,  etc 243 

46 


722  INDEX. 

ADMINISTRATION— conimued,  Section 
no  title  taken  to  property  held  by  decedent  in  another's  right ;  cor- 
poration, etc 244 

representative  does  not  succeed  to  decedent's  trusts,  etc 245 

how  one  ceases  to  hold  assets  as  representative  so  as  to  hold  as  in- 
dividual        246 

devolution  of  title  where  rejjresentative  is  also  guardian  or  trustee   .     247 

legatee  or  distributee 248 

residuary  devisee  and  legatee 249 

executor  sometimes  acts  as  trustee 247a 

executor  should  administer  estate  undisposed  of,  where  partial  intes- 
tacy     250 

right  and  duty  of  discharging  contract  liabilities,  etc.,  of  deceased     .     251 

avoidance,  etc.,  of  contracts  by  deceased  illegally  made 252 

contracts  personal  to  deceased,  etc.,  distinguished  from  those  requir- 
ing performance       253 

personal   liability  of  representative  upon   decedent's  debts  or  con- 
tracts             254,  255 

how  incurred ;  statute  of  frauds;  sufficient  consideration,  etc.      .     .     255 
representative's  own  creation  of  debt  binds  himself;  not  the  estate  .     256 
lien  on  assets  for  representative;  not  for  creditor;  estate  how  an- 
swerable       257 

negotiable  notes,  etc.,  running  to  representative ;  other  instances  .  258 
recognition  of  claim  arising  on  his  own  contract ;  limitations  .  .  .  258 
lien  on  assets,  how  far  existing  for  representative's  own  immunity  .  259 
rule  of  lien  applied  in  settling  account  of  representative  deceased,  etc.  260 
assets  recovered  by  representative  on  his  own  contract  enure  to  es- 
tate     261 

estate  should  not  derive  unconscientious  advantage 262 

whether  admissions  by  representative  bind  estate 263 

control  of  assets  by  probate  or  equity ;  practice 264 

interpleader,  etc.,  for  instructions,  by  personal  representative  .  .  .  265 
representative  not  a  proper  party  to  annulling  a  marriage  ....  266 
vesting  of  possession  ;   chattels  real,  etc..  distinguished  from  chattels 

personal 267 

whether  representative  may  act  by  attorney 268 

no  property  in  corpse  of  decedent 268a 

transactions  barred  by  lapse  of  time 268/' 

collection  of  the  assets 269  ei  seq. 

See  Assets. 

methods  for  discovery  and  pursuit  of  assets 270,271 

collection  ;  duty  to  collect  or  pursue ;  actions zTi  et  scq. 

See  Actions;  Assets. 

care,  custody,  and  management  of  assets ■i^\2  et  scq. 

See  Assets. 

sale,  pledge,  purchase,  etc.,  by  representative 339  ct  scq. 

See  Assets. 


INDEX.  723 


loll 


ADMINISTRATION— <:o«/'///«^^,  Sect 

liability  of  executor  or  administrator ^(t^  ef  sa/. 

See  Action  ;  Assets. 

administration  rights  and  duties  ;  co-executors 51,400-406 

co-administrators 4'.  51,  404-400 

administrator  with  will  annexed 123,  407 

administrator  de  bonis  non 1 28,  408  ct  se(/, 

administrator  de  bonis  non  \\'i\.\\  \\\\\  a.y\i\exe(\ 413 

temporary  and  special  administrators 414 

as  to  qualified  administration  in  general ;  rights,  duties,  etc.      .      415,  416 

payments  and  distribution ^xj  ct  sa/. 

See  Claims;  Distribution;  Legacies. 

widow's  allowances  ;  minor  children's  allowances,  etc 447  t'/.rci^. 

rights,  powers,  etc.,  of  representative  as  to  real  estate      .     .213,  509-517 

See  Real  Estate. 
accounting  of  executor  or  administrator,  and  allowances     .     .    ^18  ei  so/. 
See  Accounting. 
ADMINISTRATORS, 

defined      2 

See  also  Administration. 

original  and  general;  how  appointed 90 

appointment  granted  wherever  there  is  no  executor 90 

origin  of  spiritual  jurisdiction  in  case  of  intestacy 90 

essentials  of  a  probate  jurisdiction  to  appoint 90-96 

persons  to  whom  general  administration  is  granted      ....      gy  e/ set/. 
See  Appointment. 

appointment  of  husband  of  deceased  wife 98 

widow  of  deceased  husband 99,  100 

next  of  kin loi-iii 

nomination  of  third  person  to  administer 113 

appointment  of  creditor,  stranger,  etc 115 

public  administrator  or  other  official  in  certain  cases  .     .     .     .      116,117, 

-nu  504. 5.32 

Jetters  of  administration 119 

when  administration  may  be  dispensed  with 1 20 

administrator  with  will  annexed,  when  and  how  appointed        .       122-127 
administrator  </£"  bonis  non,  when  and  how  appointed   .      12S-T31,  232,  237 

rights,  duties  and  liabilities 408-413 

accounts 53- 

administration  during  minority  {durante  viinorc  crtatc')        .     .    132,  135,  232 

during  absence  [durante  absent/a] '33-  '35'  -3- 

pendente  lite '34-135 

special  administration '35'  4'4'  53- 

bonds  of  administrators 136-149 

See   Bonds. 

foreign  and  ancillary 162  et  set/.,  $47 

See  Conflict  of  Laws. 


724  INDEX. 

ADMISSION,                                                                                                           Section 
by  representative  whether  binding 263 

ADVANCEMENT, 

by  representative  to  creditors 443 

to  children,  how  reckoned  in  distribution J99,  500,  543 

AGENT, 

responsibility  of  representative  for  acts  of 268,  296,  321 

ALIEN, 

as  executor 32,  33 

ALLOWANCES.     See  Accuunting 228,  446a,  51  3«,  535  t-/ j^r^. 

ANCILLARY, 

administration 42,  162  et  seq. 

See  Conflict  ok  Laws. 

ANNUITY 479 

APPEAL.     See  Action .s.  Courts 11,150,151 

APPOINTMENT, 
of  executors. 

designated  under  will ;  trust  absolute  or  quahfied 31 

who  are  capable  of  serving;  rule  as  to  married  women,  infants,  cor- 
porations, etc 32 

rule  as  to  criminals,  dissolute  persons,  insolvents,  etc t^t, 

miscellaneous  disabilities  for  the  office        34 

express  appointment  by  testament 35 

constructive  appointment  by  designating  functions;   executorship  ac- 
cording to  the  tenor 36,  37 

mere  designation  of  trustees,  legatees,  etc.,  insufficient 37 

identifying  the  executor 38 

suggested  executor,  adviser,  etc 39 

conditional  appointment ;  substitution 40 

co-executors 40 

testator's  delegation  of  the  power  to  name 41 

limited  or  conditional  executorship  for  different  countries,  etc.      .     .       42 
whether  executorship  passes  to   executor's  representatives  ;  executor 

of  executor,  etc 13 

acceptance  and  refu.sal  of  the  executorship;  citation  of  person  named       44 

death  equivalent  to  a  renunciation 45 

refusal  of  record ;  constructive  refusal  or  acceptance 46,  47 

right  to  renounce  not  to  be  exercised  corruptly,  etc 48 

whether  executor  renouncing  may  exercise  a  power 49 

retraction  after  renunciation  ;  subsequent  appointment 50 

renunciation  where  several  executors  are  named 51 

how  appointed  by  the  court ;  letters  testamentary 52 

probate  of  will 53 

See  Probate. 
of  orif^hial  and geiie7-al  admi7iistrators. 

jurisdiction  to  appoint  wherever  there  is  no  executor 90 

intestacy  fundamental  to  the  grant  of  general  administration    ...       91 


INDEX.  725 

APPOINTMENT— ro^i'/wMfflT,  Section 

death,  and  domicile  or  local  assets gr 

presumption  favors  jurisdiction  in  granting;  but  fundamental  facts 

must  exist 92 

value  or  kind  of  estate,  whether  fundamental 93 

time  wthin  which  original  administration  must  be  applied  for       .     .  94 
no  original  and  general  administration  granted  while  other  letters 

are  in  full  force ;  double  jurisdiction,  etc 95 

judicial  inquiry  into  the  facts  essential        y6 

persons  to  whom  general  administration  is  granted 97 

husband's  right  to  administer  upon  estate  of  deceased  wife       ...  98 

widow's  right  to  administer  upon  estate  of  deceased  husband  .     .    99,  100 

right  of  next  of  kin  to  administer ;  consanguinity loi 

who  are  next  of  kin;  how  to  ascertain  preference  among  kimlicd    101,  102 

preferences  among  kindred  of  the  same  degree,  etc 103 

leading  considerations  affecting  the  choice  among  those  equally  en- 
titled         104 

suitableness  for  appointment,  etc 104 

suitableness  as  between  males  and  females,  younger  and  older,  etc.  105 

suitableness  as  concerns  married  women;  husband's  rights,  etc.        .  106 

suitableness  as  concerns  insane  persons;  infants;  corporations,  etc.  107 

illegitimate  children  and  their  right  to  administer 108 

whether  non-residence  disqualifies 109 

other  considerations  determining  the  choice  of  administrator    .     .     .  no 

statute  order  among  next  of  kin  stated 111 

renunciation  or  non-appearance  of  those  entitled  by  preference     .     .  1 1 2 

citation  of  those  entitled 112 

nomination  of  third  person  by  the  person  entitled  to  administer  .     .  113 

unsuitableness  of  judge  of  probate,  etc.,  for  the  appointment  .     .     .  114 
right  of  creditor  or  stranger  to  be  appointed  in  default  of  kindred, 

etc 115 

public  administrator,  or  other  otficial,  appointed  in  certain  cases     116,  117 

method  and  form  of  granting  letters  of  administration 118 

administrator  as  such  must  be  appointed;  credentials  of  authority    .  119 

in  what  cases  administration  may  be  dispensed  wnth 1 20 

of  adtninish-aiors  not  original  and  general. 

administration  with   will   annexed  (cum   testamento  annexo) ;    when 

granted,  and  how 122 

functions  of  the  office 123 

to  whom  granted ;  residuary  legatee 124 

appointment  of  next  of  kin 125 

surviving  spouse's  right  considered 1 26 

executor's  rights 127 

of  personalty  not  already  administered  {dc  bonis  iion) ;  when  granted  128 

to  whom  committed 129 

miscellaneous  points 131 

temporary  admimstration ;  ilyxiiw^nxvwox'vi'j  {durante  ininore  cctate)   132,  135 


726  INDEX. 

APTOlSTME'NT—conimued,  Section 

during  absence  {durante  absentia) 133,  135 

pendente  lite 134,  135 

special  administration,  for  limited  and  special  purposes   .     .            I35'  ^53 

attorney  for  absent  appointee,  etc 135 

bonds  of  executors  and  administrators 136  ^/ ji-^.,  153 

See  Bonds. 
appeal;  revocation  of  letters;  neiv  appointment,  etc. 

appeal  from  decree  of  probate  court ;  mandamus,  etc.      .     .     .        150,  151 

revocation  by  proceedings  in  the  probate  court 152 

grounds  upon  which  revocation  is  proper 153 

removal  of  executor  or  administrator ,     .  154 

procedure  in  case  of  revocation  of  appointment  or  removal  from 

office 155 

resignation  of  executor  or  admiiristrator 156 

jurisdiction  in  general,  as  to  revocation,   removal,  and  accepting  a 

resignation 157 

natural  termination  of  executor's  or  administrator's  authority  ;  death  ; 

final  settlement,  etc 158 

delegation  of  authority  does  not  relie\e,  but  supcrsedure  does.     .     .  159 

the  effect  of  probate  decrees 160 

the  effect  of  an  appeal  from  probate 161 

foreigtt  and  ancillary  appointtnents. 

this  subject  considered  at  length 162  et  seq. 

letters  testamentary,  or  of  administration,  have  no  extra-territorial 

force 164 

foreign  and  domestic  probate,  and  letters  testamentary   .     .    169-171,  173 

foreign  and  domestic  administration 172,  173 

See  Conflict  of  Laws. 
officiatijtg  without  an  appointment. 

executor  a'^w;/ /t^r/  at  common  law  defined 23a,  184 

various  circumstances  under  which  one  may  act  without  having  been 

qualified 185 

wrongful  and  injurious  dealings  with  a  dead  person's  estate;  execu- 
tor de  son  tort 186 

executorship  ^/^  jow /t*;-/ ;  legal  consequences 187 

effect  of  wrongful  and  injurious  dealings,  aside  from  the  theory  of  ex- 
ecutorship de  son  tort 188 

modern  statutes  restrict  the  liability  of  intruder  to   creditors    and 

strangers 189 

liability  of  intruder  upon  estate  to  the  rightful  executor  or  adminis 

trator 190 

intermeddling  with  lands  of  tlie  deceased 191 

liability  of  one  who  administers  under  void  letters,  etc 192 

beneficial  dealings  with  a  dead  person's  estate  by  one  not  appointed,  193 

acts  done  by  a  rightful  executor  before  qualifying 194 

acts  done  by  a  rightful  administrator  before  qualifying 195 


INDEX. 


727 


APPOINTMENT— r(7«/«««^(/,                                                                            Sj^,ij,„ 
whether  a  suitable  representative  who  has  intermeddled  can  be  com- 
pelled to  take  out  letters 106 

intermeddling  by  a  third  person  after  the  grant  of  letters  testamen- 
tary or  of  administration 197 

appointment  of  trustee  under  a  will 472 

See  Trustees. 

notice  of  appointment,  under  statute 418-420 

See  Claims. 

APPORTIONMENT 216,301 

APPRAISERS.     See  Inventory. 
ARBITRATION, 

by  representative 298 

of  claims 373,  3S6,  387 

ASSESSMENTS, 

whether  payable  by  representative 318 

See  Tax. 
ASSETS, 

assels  classified. 

what  comprise  assets  of  a  deceased  person's  estate ;  personal  con- 
trasted with  real  assets 90,  198 

personal  property  of  the  decedent  vests  in  executor  or  administrator,  199 
enumeration  of  personal  assets ;  choses  in  action  as  well  as  choses  in 

possession 200 

contingent  and  executory  interests 201 

stock ;  public  and  corporation  securities  ;  life-insurance  policies    .     .     202 

personal  property  taken  or  given  in  security 203 

to  constitute  assets,  title  must  have  stood  in  decedent  at  his  death    .     204 
personal  property  of  another  among  goods  of  deceased ;  identifica- 
tion     205 

personal  property  of  decedent  left  in  another's  possession  is  assets  .  206 
personal  property  constitutes  assets  notwithstanding  ultimate  title  of 

legatees,  heirs,  etc 207 

debt  due  from  representative  or  legatee,  etc.,  to  decedent,  constitutes 

assets 208 

personal    assets    coming    to  knowledge    but   not   possession   of  the 

representative 209 

personal  assets  or  not,  where  decedent's  title  was  qualified  .  .  .  .  210 
various  cases  where  representative  does  not  hold  strictly  as  assets  .  211 
real  estate  descends  to  heirs ;  not  assets  e.xcept  for  deficiency  .  .  212 
executor  or  administrator  has  no  inherent  authority  as  to  real  estate     213 

real  estate  of  mortgagor  or  mortgagee ;  rule  of  assets 214 

rule  of  assets  as  to  land  set  off  on  execution 215 

rents,  profits,  and  income  of  real  estate ;  damages,  etc. ;  rule  of  assets  216 
legal  character  of  property,  real  or  personal,  fixed  at  owner's  death  .  217 
rule  of  equitable  conversion 217 


728  IxVDEX. 

ASSETS — continued.  Section 

character  of  property  at  owner's  death ;  instances  ;  contract  to  sell 

land 218 

land  damages  ;  fire-insurance  mo  lie)- 218 

gifts  ffl«j-a  w<7r^;,f  as  affecting  question  of  assets 219 

effect  of  insolvency ;  equitable  assets,  etc 219^ 

assignment,  gift,  or  transfer  by  decedent,  to  be  avoided  if  fraudulent 

as  against  his  creditors 220 

equitable  assets  as  distinquished  from  legal  asacts 221 

assets  where  property  is  appointed  under  a  power 222 

chattels  real  as  assets;  leases,  etc 223 

chattels  which  come  by  remainder  as  assets 224 

things  on  the  border-line  of  real  and  personal 225 

rule  of  assets  appUed  to  heirlooms •     .     .     225 

emblements       226 

fixtures 227 

products  of  severance 227(7 

new  assets  for  debts 446/^ 

rule  as  to  foreign  assets        24,  174,  228 

See  Invkntory. 
general  powers,  duties,  and  liabilities  of  executors  and  administrators  as 
to  assets. 
title   to  personal   property   and  its   devolution  upon  the  represent- 
ative         238-250 

right  and  duly  of  discharging  contract  liabilities  of  deceased  .  .  .  251 
contracts  personal  to  decedent  ;  representative's  undertaking  .  253-255 
representative's  own  creation  of  debt;  estate  how  answerable  .  258-260 
assets   recovered  by   representative  on   his  own  contract  enure   to 

estate 26 1 

estate  should  not  derive  unconscientious  advantage 262 

control  of  assets  in  probate  and  equity  ;  interpleader,  etc.     .     .      264,  265 
vesting   of  possession ;   chattels   real    and  chattels  personal   distin- 
guished        267 

whether  representative  may  act  by  attorney 268 

no  property  in  the  corpse 268a 

collection  of  assets. 

general  duty  of  representative  to  collect  and  procure  the  effects,  etc.  269 
statute  methods  for  discovering  assets  in  aid  of  his  pursuit  ....  270 
special  statute  proceedings  against  intermeddlers  with  assets,  etc.     .     271 

power  of  representative  to  enter  premises,  force  locks,  etc 272 

duty  to  pursue  or  collect  depends  upon  means  at  disposal    .     .     .     .     273 

also  upon  sperate  or  desperate  character  of  claims 274 

also  upon  representative's  means  of  knowledge 275 

legatees,  creditors,  etc.,  have  no  right  to  hold  against  him  ....  276 
suing  to  recover  assets  ;  actions  founded  in  contract,  etc.,  survive  277 

rule  of  survival  as  to  contract  obligation ;  exceptions 27S 

actions  founded  in  injury  to  person  or  property 279-282 


INDEX. 


729 


ASSETS — continued,  c  ..■ 

action  for  damages  in  causing  death 28^ 

action   founded    in    wrong    done    to    real    estate ;    upon   covenants 

real,  etc 284,  285 

breach  of  covenant  in  deed  oi  lease 286 

action  for  disturbing  possession ;  pew,  lease,  etc 287 

in  general  personal  representative  sues  for  assets  of  the  estate      .     .  288 
suits,  whether  to  be  brought  by  representative  in  his  own  name  or  as 

representative 280 

general  principle  as  to  such  suits ,     .     .     .     .  290 

this  principle  appHed  in  suing  for  torts  affecting  the  property    .     .     .  291 

suits  on  contracts  made  with  the  representative 292 

suit  on  promissory  note  or  other  negotiable  instrument 293 

general  conclusion  as  to  suing  on  contract  in  individual  or  represent- 
ative character 294 

prosecuting  suits  in  equity  with  reference  to  assets 295 

proceedings  to  obtain  possession  of  specific  negotiable  instruments, 

etc. ;  agency 296 

pursuit  of  assets  where  decedent  fraudulently  transferred     ....  297 

representative's  power  to  compromise  or  arbitrate        298 

effect  of  contract,  covenant,  etc.,  to  decedent  which  did  not  name  ex- 
ecutors, administrators,  etc 299 

effect  where  expression   "assigns,"  "next  of   kin,"  "heirs,"   etc.,  is 

used 300 

right  of  representative  to  distrain  or  sue  for  rent  in  arrears       .     .     .  301 

right  as  to  conditions  made  wdth  deceased 302 

right  accruing  to  personal  representative  by  chattul  remainder,  etc.   .  303 

in  his  time  and  after  decedent's  death 304 

right  of  personal  representative  as  to  pledge,  cullalc-ral  security,  etc.  305 

collection  of  debts  with  security  ;  changing  or  renewing  the  security  306 

gathering  the  crop  or  emblements 307 

want  of  dihgence  or  good  faith  in  collecting  assets 308 

collection  of  interest-bearing  debts ;  usury,  etc 309 

what  may  be  taken  in  payment ;  private  arrangements  with  debtor, 

etc 310 

liability  where  property  is  taken  or  money  collected  by  mistake  as 

assets 311 

care,  custody  ajid  Dia/iagcnieni  of  assets. 

effect  of  payment,  etc 31 1" 

care,  custody  and  management  an  important  function 312 

executor  or  administrator,  how  far  a  bailee  as  to  responsibility;  hon- 
esty, etc 313,  314,  316 

whether  like  a  gratuitous  bailee  or  a  bailee  with  recompense     .     .     .  315 
liability  as  to  care  and  custody,  and  general  management      .     .       313.  3' (> 

collection  of  income,  etc. ;  responsibility 317 

as  to  investing  or  paying  cash  ;  deposits,  etc 3 '7'' 

paying  assessments,  discharging  liens,  etc.,  on  personal  a.sscis  .     .     .  31S 


730  INDEX, 

ASSETS — continued.  Section 

vote  upon  stock 319 

putting  assets  into  a  salable  condition;  repairing,  etc 320 

responsibility  of  representative  for  acts  of  his  attorney,  etc.       .         -321 

duty  as  to  investing  assets;  placing  funds  at  interest,  etc 322 

investments,  how  to  be  made,  etc. ;  rule  of  liability      ....      323,  324 

liability  for  leaving  assets  in  trade ;  speculation,  etc 325 

closing  out  decedent's  business,  etc 325a 

carrying  on  a  trade  with  assets,  etc.         ...         326,  326a 

sale,  investment,  etc.,  of  perishable  assets  ;  cattle,  etc 327 

calling  in  money  already  out  on  loans  or  investments 328 

making  unauthorized  loans  or  investments 329 

representative's  acts  are  for  benefit  of  those  interested;  good  faith, 

etc.,  required 330 

assets  should  be  kept  distinct  from  representative's  own  property  .  331 
liability  qualified  when  acts  are  performed  under  advice  and  assent 

of  parties  in  interest 332 

or  under  direction  of  court        333,  334 

following  directions  of  will  as  to  investment 335 

lending  on  poor  or  no  security 335« 

summary  of  doctrine  as  to  management  and  investment  ;  deviations     336 

rule  similar  to  that  of  guardian,  trustee,  etc 337 

election  of  parties  in  interest  to  charge  representative  or  accept  in- 
vestment      338 

representative's  pcnver  to  sell  ami  tra>tsfer  assets  and  to  purchase. 

power  to  dispose  of  assets 322,  339 

sale  or  transfer  only  while  representative  holds  office 340 

whether  at  public  or  private  sale 341 

sale  of  goods  bequeathed  for  life  with  remainder 342 

power  of  representative  to  dispose  of  chattels  specifically  bequeathed,     343 

sales  of  perishable  assets,  etc 344 

representative's  sale  of  his  decedent's  business 325,  345 

sales  and  transfers  under  probate  direction 346 

authority  as  affected  by  expressions  in  the  will 347 

consulting  parties  in  interest  as  to  time,  manner,  etc.,  of  sale    .     .  348 

representative  may  pledge  or  mortgage  assets  instead  of  selling    .  349 

bona  fide  purchaser,  pledgee,  etc.,  not  bound  to  see  to  application.  .  350 
letters  testamentary,  or  of  administration,  are  credentials  .  .  .  .  351 
good  faith  and  caution  requisite  from  purchaser,  pledgee,  etc.  .     352 

disposal  of  chattels  real ;  assigning  and  underletting  leases,  223,  353 

restraints  upon  power  to  dispose  of  assets  as  to  representative     .     .     354 

his  liability  for  negligence,  fraud,  etc.,  in  sale 355 

obtaining  payment  or  taking  security  for  the  purchase-money  .  .  .  356 
collusive  or  fraudulent  disposition  of  assets  by  representative  .     .     .     357 

purchase  by  representative  at  his  own  sale,  etc 358 

re-opening  representative's  voidable  transfer,  etc. ;  relief  as  against 
third  parties 359 


INDEX.  721 

ASSETS — continued. 

Section 
representative  cannot  avoid  his  own  voidable  transfer -760 


whether  he  warrants  title  when  he  sells 


361 


sales  of  negotiable  instruments 258,  352    162 

authority  to  purchase -g_ 

no  right  to  give  away  assets ,g. 

right  to  recover  assets  wrongly  transferred 364a 

liability  of  an  executor  or  administrator  as  to  assets. 

liability  is  in  respect  of  acts  of  deceased  or  his  own  acts 365 

acts  of  deceased  ;  survival  of  actions  founded  in  contract     ....     366 

exceptions  as  to  personal  contracts  of  deceased 367 

distinction  as  between  gifts  and  contracts j68 

form  of  action  material  in  this  connection ■769 

survival  of  actions  founded  in  tort ;  not  permitted  at  common  law  .  370 
whether  replevin  can  be  maintained  against  representative  .-..371 
whether  other  remedies  might  be  applied  because  of  tort      ....     372 

modern  statutes  enlarge  the  survival  of  actions 373 

survival  of  actions  for  rent  or  damage  to  real  estate 374 

covenants  of  decedent ;  covenants  under  lease,  etc 375 

personal  representative's  liability  for  rent 376 

liability  on  covenants  concerning  real  estate,  etc 377 

joint,  several,  etc.,  contracts  of  decedent 378 

of  representative  of  deceased  partner 370 

stockholder -jgo 

exoneration  of  personal  property  specifically  bequeathed       ....     381 

liability  of  personal  representative  as  to  his  own  acts       382 

negligence;  bad  faith  ;  \i2i%i&  ox  devastavit ;  torts 382-386 

representative  how  to  be  sued  for  his  wrongful  acts 385 

effect  of  arbitration  or  compromise  of  demands  .     .     .       386,  387 

release  of  debt,  renewals,  etc.,  by  representative 388 

general  and  special  statutes  of  limitations 389,  390 

opportunity  to  ascertain  insolvency -loi 

the  statute  of  frauds ,02 

devastavit  when    excused    by    concurrence,    etc.,    of    those   injured 

thereby ^q^ 

complicity  of  third  persons  in  the  devasta-rit  renders  them  liable  .  .  394 
liabihty  of  executor  or  administrator  on  his  own  contracts  ....  395 
how  sued  upon  his  express  promise  or  collateral  undertaking   .     .     .     396 

exceptional  instance  of  suing  for  funeral  expenses,  etc 398 

liability  on  negotiable  instruments 398a 

liability  for  waste ;  action 398^ 

rights,  duties,  and  liabilities  as  to  assets  in  co-administration  and  quali- 
fied administration 300 

rights,    duties,   and    liabilities   of   co-executors;  tlicii    liile   and  au- 
thority    .     .     ,         51, 400,  401 

liabilities  of  co-executors 51,402 

co-executors  ;  actions  by  and  against *  .      403 


732  INDEX, 

ASSETS — continued,  Section 

rights,  duties,  and  liabilities  of  co-administrators 404 

survivorship  among  co-executors  or  co-administrators  .  .  .  41,51,405 
liability  of  co-executors   and  co-administrators  on  bonds;  joint  or 

several  bonds 406 

rights,  duties,  and  Habilities  of  administrator  with  will  annexed  .  123,  407 
rights,  duties,  and  liabilities  of  administrator  de  bonis  no7i  .  128,  408,  409 
relation  of  administrator  de  boms  non  to  predecessor's  contracts,  etc.  410 
suit  on  negotiable  instrument  as  concerns  administrator  de  bonis  non  411 
administrator  de  bonis  non  bound  to  observe  good  faith  and  prudence     412 

with  will  annexed 413 

rights,  duties,  and  liabihties  of  temporary  and  special  administrators, 

etc 4>4 

quahfied  representative's  designation  of  his  own  othce 415 

negligence  by  various  representatives  in  succession 416 

See  Claims  ;  Distribution  ;  Legacies. 

marshalling  assets  in  case  of  a  deiiciency 490,  512 

See  Real  Estate. 
ASSIGNMENT, 

voluntary  in  fraud  of  creditors 220 

See  Assets. 

ATTESTATION.     See  Will 78 

ATTORNEY, 

delegation  of  authority  does  not  relieve  of  responsibility     .     .     .   159,  321 

whether  representative  may  act  by  attorney 268 

employment  of  counsel j68,  544,  545 

fees  when  allowed  in  account 544,  545 

B. 

BAILMENT, 

doctrines  of  responsibility  applied 3J3>  3i^> 

BEQUEST.     See  Legacy. 

BODY, 

of  decedent 268a 

BONA  NOTABILIA.     See  Admln  istration  ;  Assets 24,91 

BONDS, 

nece.ssity  of  qualifying  before  appointment 136 

security  required  from  the  court 136 

when  and  how  required  from  an  executor 137 

of  an  executor  who  is  residuary  legatee 138,  534 

when  and  how  required  from  an  administrator 139,  140 

how  probate  bonds  are  taken  ;  penal  sum,  sureties,  etc 141 

irregularities,  etc.,  attending  execution,  how  far  available  ....  142 
whether  probate  bond  may  bind  as  a  common-law  bond      ....       143 

sufficiency,  a.s  to  the  security  and  parties  offered 144 

co-executors  and  co-administrators ;  joint  and  separate  bonds  145 

probate  l)ond;  what  property  is  covered  ;  what  functions  included,  etc.     146 


INDEX. 


733 


BONDS — continued.  Section 

release  or  discharge  of  sureties 1^7 

new  or  additional  bonds,  when  and  how  required 148 

lost  and  missing  probate  bonds 140 

of  co-executors  and  administrators iac,  406 

of  administrator  with  will  annexed 123,  407 

administrator  </d' ^^«/>  ;/o« 1 28,  408  6'/ j^y. 

bond  of  indemnity  from  legatees 477 

remedies  for  overpayment,  etc 491 

special,  where  licensed  to  sell  real  estate c|-i 

negotiable,  as  investment 202 

of  surety  or  guaranty  company 144,  542«. 

BONORUM  POSSESSIO        6 

BURIAL.     See  Funeral. 

C. 

CAPITAL 13,476 

CHANCERY.     See  Actions;  Cour is. 

CHARGES.     See  Accounting 535  ^/j^y. 

CHATTELS  REAL 223,  224,  303 

See  Assets;  Lease. 
CHILD.     See  also  Infant. 

payment  of  legacy  to  infant 483 

as  distributee 495,  498 

advancements  to,  how  reckoned        499,  500 

CITATION, 

in  proceedings  for  probate  and  administration 69,  112,115 

on  accounts        523 

CLAIMS, 

on  behalf  of  the  estate. 

See  Assets. 
against  the  estate. 

debtor's  payment  to  sole  distributee I97<^ 

executor  of  administrator  bound  to  pay  debts,  claims,  etc.    .     .       251,  417 

notice  of  appointment ;  presentation  of  claims 418-420 

statutes  of  special  limitations        118-420 

funeral  charges  and  their  priority 421 

place  of  final  interment ;  gravestone,  etc 422 

other  preferred  claims ;  administration  charges ;  debts  of  last  sick- 
ness   423 

these  preferred  claims  rank  together;  settlement  in  full  or  ratably    .     424 

general  payment  of  debts;  rule  of  priority 425 

English  classes  as  to  priority,  enumerated ;  debts  of  record  ;  specialty 

and  simple  contract  debts,  etc 426,  427 

American  rules  of  priority  among  claimants 428 

claims  grounded  in  a  tort ;  contingent   claims  ;  damages,  etc.,  how 
reckoned 429 


734  INDEX. 

CLAIMS — contifiucd,  Section 

classification  by  probate  court 428«.,  433 

mortgage  debts  ;  rights  of  creditors  having  security 430 

invalid  or  exorbitant  claims;  voluntary  transactions    ....       252,431 

claim  of  person  disappointed  of  a  legacy 432 

decree  or  order  of  payment 433 

commissioners  or  auditors  to  examine  claims 434 

exhaustion  of  assets  in  paying  superior  claims ;  preferences  to  be  ob- 
served     435 

notice  of  debts  as  affecting  their  payment,  etc. ;  English  rule    .      436,  437 

English  rule  as  to  equal  creditors ;   creditors'  bill,  etc 437 

notice  of  debts  as  affecting  their  payment ;  American  rule   ....     438 

debt  due  representative  from  estate ;  right  to  retain,  etc 439 

interest  on  claims  presented 440 

mode  of  paying  off  claims  ;  extinguishment,  etc 441 

personal  liability  of  representative  for  debts 442 

payment  or  advancement  out  of   representative's  own  funds     .     .     .     443 

recovery  of  over-payment  from  creditor 444 

when  heirs,  next  of  kin,  etc.,  are  liable  for  debts  of  the  estate  .     .     .     445 

payment  of  claims  where  estate  proves  insolvent 435,  446 

new  assets  for  debts 446^ 

buying  up  claims,  etc 446^ 

debts  for  continuing  decedent's  trade 446^ 

satisfaction  of  debt  by  legacy 467,  470 

See  Legacy. 

widow's  allowances,  etc 447  etse<j. 

See  Widow. 

take  precedence  of  legacies 476 

See  Legacies. 
sale  of  real  estate  to  pay 511,  514 

CO-ADMINISTRATION.     See  Joint  Administration. 

CODICIL.     See  Will 60,82 

COLLATERAL  SECURITY.     See  Pledge. 

COLLECTION, 

of  debts,  personal  assets,  etc iSgetseg. 

See  Assets. 

COMPENSATION, 

of  executor  or  administrator 545 

COMPROMISE, 

power  of  representative 298,  373,  386,  387 

CONCEALMENT       270 

See  Assets. 

CONFLICT  OF  LAWS, 

general  rule  of  comity;  authority  of  representative  local     ....        15 

rule  as  to  foreign  creditors 15 

comity  favors  as  to  payment  of  legacies  and  distiil)ution     ....       16 
as  to  execution  and  validity  of  foreign  wills 17 


INDEX. 


735 


CONFLICT  OF  LAWS— continued,  j,e^,io„ 

as  to  accountability  of  executor  or  administrator i8 

personal  and  real  property  contrasted;  situs  prevails  as  to  real  19 

general  rules  varied  by  treaty,  statute,  etc ,     .     .     .       20 

local  appointment  to  prosecute  statutory  action 2\ci 

probate  of  foreign  wills ^7 

foreign  and  ancillary  appointments  in  the  United  Stntes  and  F-ngland     162 

what  is  ancillary  administration 163 

letters  testamentary  or  of  administration  have  no   extra-territorial 

force 164 

foreign  and  domestic  probate  and  letters  testamentary    .     .  169,  170 

whether  will  to  be  operative  must  conform  to  law  of  last  domicile  171 

foreign  and  domestic  administration 172 

foreign  appointment  of  executors  and  administrators ;  local  letters,  etc.     1 73 
principal  and  ancillary  letters ;  comity  as  to  transmitting  assets  for 

distribution  after  local  debts  are  satisfied 174 

duty  of  the  domestic  representative  as  to  foreign  assets  ...  175,  228 
voluntary  surrender  of  local  assets  to  domiciliary  administrator  .  .  176 
liability  of  representative  in  domestic  jurisdiction  for  acts  done  abroad  177 
permitting  foreign  creditors  to  sue  in  the  local  jurisdiction  .  .  .  178 
principal  and  ancillary  jurisdictions,  how  far  independent  of  one  an- 
other        179 

responsibility  where  the  same  person  is  principal  and  ancillary  repre- 
sentative     180 

ancillary  or  local  representative,  how  far  respon.sible  for  assets     .     .     181 
where  different  executors  are  named  in  a  will  for  different  sovereign 

jurisdictions 182 

where  the  principal  representative  cannot  procure  foreign  assets,  lega- 
tees and  distributees  may  pursue    183, 446a,  515a 

principal  and  ancillary  as  to  real  estate 5I5<^ 

accounts  and  allowances 547 

officiating  without  an  appointment ;  executor  (/^r  j-^^w /t?^/,  etc.    .     \84eisef. 
See  Appointment. 
CONSANGUINITY.     See  Appointment;  Table  in  Appendix.  .       101,102 
CONSTITUTIONAL  QUESTIONS, 

affecting  administration  in  the  United  States 28,29 

each  State  exercises  independent  jurisdiction ;  United  vStates  should 

not  interfere 29 

CONTRACT.     See  Actions. 

liabilities  of  deceased 251  et  seq.,  365 

See  Assets;  Claims. 

CONVERSION 217 

CORPORATION.     See  Actions;  Assets. 

assets  owing  by 25a 

as  executor  or  administrator 32,  107,  114 

as  surety  on  fiduciary  bond 144.  S42« 

corporate  officer's  death  ;  effect 244 


736  INDEX. 

CORPOKATI  O'i^—couthmed.  Section 

rent  of  safe-deposit  box 542« 

as  legatee        460 

CORPSE 268rt 

COURTS.     See  also  Actions. 

former  abuses  of  spiritual  courts  in  cases  of  intestacy 7 

English  ecclesiastical  or  spiritual  jurisdiction 10 

probate  jurisdiction  and  procedure  in  the  United  States.     .  .       n-13 

chancery  jurisdiction  whether  concurrent 13 

modern  probate  jurisdiction  in  England;  new  Court  of  Probate  Act 

20  &  21  Vict , 14 

jurisdiction  in  granting  letters ;  founded  in  domicile 22,  23 

locality  of  personalty  or  bona  tiotabilia 24-26 

questions  of  double  jurisdiction 24-26 

whether  locality  of  real  estate  may  give  jurisdiction 27 

constitutional  points ;  each  State  exercises  jurisdiction    ....      28,29 

only  interested  persons  regarded ...     29^ 

appointment  of  executors  or  administrators 52  f/  seq- 

revocation  of  letters ;   new  appointment,  etc ...    150-161 

appeal  from  decree  of  probate  court;  mandamus,  etc.      .     .    150,  151,  161 
See  Appointment. 

effect  of  probate  decrees 160 

in  matters  of  foreign  and  ancillary  administration 162  et  seq. 

See  Conflict  ok  Laws. 

power  of  probate  court  as  to  inventory 236 

probate  and  equity  control  of  assets;  bills  for  administration,  etc.     .     264 

interpleader  for  instructions 265 

directing  investments,  etc 333,  334 

sales,  etc.,  of  personal  assets  under  probate  direction 346 

classification  of  claims  against  estate;  and  order  of  payment    .  428  «.,  433 

creditors'  bill,  etc 437 

commissioners,  auditors,  etc.,  as  to  claims 434 

decree  for  widow's  allowance,  etc 452 

equity  and  probate  jurisdiction  of  wills  and  trustees 472 

interpleader,  etc.,  for  construction  of  will 473 

license  to  sell  real  estate,  etc 511,  513,  516 

compelling  an  account  in  equity 519,  520 

jurisdiction  of  accounts  and  allowances ^i^etseq- 

See  Accounting. 

COVENANT.     See  Assets  ;  Claims. 

CREDITOR, 

right  to  administer 115 

foreign  claimants,  etc 173 

See  Claims;  Conflict  of  Laws. 

CROP.     See  Emblem ent.s. 

CUSTODY.     See  Assets. 


INDEX.  -Jl-J 

^'  Section 

DEATH !</,  55,  91,  i6o 

DEBT, 

of  representative,  legatee,  distributee,  etc.,  to  decedent     .      208,  470,  492a 

due  from  decedent 4j9,  469 

satisfaction  by  legacy 459 

See  Assets. 
in  general.     See  Claims. 

DEVASTAVIT.     See  Actions;  Assets 382-384 

DEVISE.     See  Will. 

DISTRIBUTION, 

rules  of  comity ;  non-residence,  etc 16 

balances  due  public  officers,  pensioners,  etc 120 

of  foreign  assets 174,  183 

See  Conflict  of  Laws. 

debtor's  payment  to  distributee , i97« 

distributee's  ultimate  title 207 

debt  of  distributee  to  decedent 208,  492^ 

representative  who  is  also  distributee 248 

distributees  when  liable  for  claims  against  estate 445 

residue  of  personal  estate  goes  according  to  testacy  or  intestacy  .     .     492 

as  to  the  residue  in  case  of  testacy ;   residuary  legatee 493 

rights  where  there  is  no  residuary  legatee  named 494 

as  to  the  residue  in  case  of  intestacy ;   distributees 495 

statutes  of  distribution ,     .     .     .     .     495 

surviving  husband's  right  to  residue  of  deceased  wife's  personalty     .     496 
surviving  wife's  rights  in  the  distribution  of  deceased  husband's  per- 
sonalty     497 

rights  of  children  and  lineal  descendants  in  distribution 498 

advancements  to  children,  how  reckoned  in  distribution  .     .     .       499,  500 

general  distribution  among  the  next  of  kin 501,  502 

distribution  where  there  is  no  known  husband,  widow,  or  ne.xt  of  kin.     503 

time  and  method  of  distribution 504 

distribution  where  real  estate  has  been  sold  to  pay  debts     ....     505 
whether  distribution  may  be  of  specific  chattels  not  reduced  to  cash,     506 

death  of  distributee  pending  distribution 507 

distribution  ;  reimbursement,  contribution,  etc 445,508 

suit  for  neglect  to  distribute 508a 

decree  of  distribution 504,  527 

DOMICILE.     See  Conflict  of  Laws. 

what  this  is  ;  residence,  inhabitancy,  etc 21 

applied  to  the  subject  of  administration      ....     22,  23,  91,   167,   183 
death  while  on  transit,  etc 23 

E. 

ELECTION 457«,489 

EMBEZZLEMENT.     See  Assets 270 

47 


738  INDEX. 

Section 

EMBLEMENTS 226,  307,  315 

ESCROW       83,  218 

ESTATE.     See  Administration. 
EXECUTORS, 

modern  definition  of 2,  3,  30 

absolute  or  qualified 31 

appointment  of 30  1?/  seq. 

See  Appointment. 

who  may  be 32,  34 

scope  of  appointment  or  designation       35,  40 

acceptance,  refusal,  etc 44-51 

appointment  by  court ;  letters  testamentary 52 

probate  of  will  by 53 

See  Probate. 

should  propound  will  for  probate 64 

grant  of  letters  upon  probate;  only  one  probate  needful       ....       87 

bonds  of , 137,   138 

administration  with  will  anne.\ed 127 

See   Bonds. 

removal  or  resignation 154,   156 

See  Appointment. 

foreign        162  et  seq. 

See  Conflict  of  Lavv.s. 

executor  dc  so>i  tort 46,  184  ct  seq- 

See  Appointment. 

acts  done  before  quaUfying 46,  194 

distinguished  from  administrators  as  to  power  to  dispose     .     .     .     .     241 
should  administer  estate  undispo.sed  of ;   partial  intestacy     ....     250 

as  residuary  legatee 249 

matters  common  to  executors  and  administrators. 
See  Admini.stration. 
EXONERATION, 

of  personal  property  specifically  bequeathed        381 

of  real  estate  by  personal 512 

EXPENSES.     See  Accounting <^\zctseq. 

F. 

FIXTURES 227,  287 

FOREIGN, 

appointments,  distribution,  etc 162 

See  Absentee;  Conflict  of  Law.s. 

FRAUD, 

of  decedent  as  to  his  creditors  avoided 220,  234,  252 

pursuit  of  assets  fraudulently  transferred  by  deceased 297 

in  dealing  with  assets 357 

waste ;  devastavit,  etc 382,  384 

See  Assets. 
fraudulent  claims  against  an  estate ,     .     431 


INDEX. 


739 


FRAUDS,  STATUTE  OF,  ^,^,-  „ 

'  '  .section 

as  to  personal  undertaking  of  representative  on  decedent's  behalf     .     255 

affecting  decedent's  engagements,  etc -jga 

FUNERAL.     See  Claims 398,  421-424 

G. 

GIFT, 

causa  tnortis  as  affecting  fjuestion  of  assets 219 

voluntary  transfer  in  fraud  of  one's  creditors 220 

distinguished  from  contract 368 

of  assets  by  representative 364 

See  Advancemknts. 
GUARDIAN, 

inventory  of  representative  as  to  several  wards        235 

where  representative  is  also  guardian 247 


investment  rule 


337 


H. 


HEIRLOOMS 225 

HUSBAND, 

surviving,  right  to  administer  deceased  wife's  estate 98 

deceased,  administration  by  wife 99 

See  WiFK,  Widow. 

administering  in  wife's  right 106,  126 

death  of,  pending  settlement  of  spouse's  estate 130 

surviving,  right  to  residue  of  wife's  personal  estate 496 

I. 

ILLEGITIMATE  CHILD, 

right  to  administer 108 

distribution  of  estate       117 

as  to  distributee ^03 

INCOME, 

of  personal  property ::oo,  317 

of  real  property 216 

INFANT, 

as  executor 32 

testamentary  capacity So 

unsuitable  to  administer 107 

administration  during  miiiority  ((/'/''''7;//(' ;;//;/(7r^  (/-/^/A')     .     .     .         132,135 

allowance  to 447,  455 

as  to  accounting 543 

interest  on  legacy        481,  482 

See  Child;  Guardia.\. 

INJUNCTION, 

denied  on  probate 89a 


740  INDEX. 

INSANE  PERSON,  Section 

testamentary  capacity  of 80 

unsuitable  to  administer 1 07 

legacy  to,  how  payable 483 

INSOLVENCY, 

as  unfitting  for  executorship 23 

as  disqualifying  to  administer 104 

of  decedent;   effect  of 219^,  220.  ^gi,  420,  421,  424 

payments  where  estate  is  insolvent       435,  446 

widow's  allowance,  whether  affected 451 

INSURANCE, 

life,  policy  of,  whether  assets 202,  211 

fire  insurance 218 

INTEREST, 

collection  of  interest-bearing  debts,  usury,  etc 309 

placing  funds  on  interest 322 

on  claims  against  the  estate 440 

interest  and  produce  of  specific  legacies 480 

interest  computed  on  general  legacies 481,  482 

when  charged  to  the  representative 538 

when  allowed  him  in  his  account 541,  542 

INTERMEDDLING 184  <?/ j^^.,  271 

INTERPLEADER, 

bill  of,  for  instructions 265,  473 

INTESTACY.     See  Administration  ;  Administrators. 

INVENTORY, 

of  real  and  personal  property 5 

formerly  reqiiired  in  England ;  custom  fallen  into  disuse     ....       229 

required  in  American  practice ;  whether  indispensable 230 

dispensing  with,  after  lapse  of  time 231 

qualified  representative  not  exempt  from  rendering 232 

what  the  inventory  should  contain 233,  234 

assets  and  inventory  in  special  instances  ;  co-ownership,  etc.    .     .     .      235 
effect  of  inventory;  power  of  local  probate  court  to  alter,  etc.       .     .       236 

inventory  as  evidence 236 

advantages  of  returning  an  inventory 237 

items  in  account,  etc 536 

INVESTMENT.     See  Assets 323  ^^  sc->/. 

J. 

JOINT  ADMINISTRATION, 

co-executors,  appointment  of,  etc 40,  41,  51,  128 

appointing  co-administrators 111,128 

bonds  of  co-executors  and  co-administrators 145 

co-executors;  rights,  liabilities,  etc 51,  400-406 

co-administrators;  rights,  liabilities,  etc 41,51,401-406 

accounting  by  co-executors  or  co-administrators 532 


INDEX.  741 

JUDGMENTS.     See  Actions;  Claims.  Section 

JURISDICTION.     See  Courts. 

in  probate  of  wills;  death,  last  domicile,  etc.      ...        la,  15,  24,  29,  57 
spiritual,  as  to  appointing  administrator  where  no  e.\ecutor      ...        90 

essentials  of  jurisdiction '''•  55>  9'>  9~ 

as  to  revocation,  removal,  etc 1 57 

K. 

KIN,  NEXT  OF, 

how  appointed loi,  102,  125 

See  Appoi.ntme.nt. 

as  distributees 498-502 

See  DisTRiBUTlo.N. 

L. 

LANDS.     See  Real  Estate. 

LEASE, 

as  assets  ;  chattels  real 223,  224 

vesting  of  possession ;  chattels  real,  leases,  etc.,  distinguished  from 

chattels  personal 267 

suits  upon  breach  of  covenant 286,  367,  375 

disturbing  possession  ;  ejectment,  etc 287 

distraining  or  suing  for  rent 301 

assignment  and  transfer ;  underletting,  etc 223,353 

liability  for  rent,  etc 376 

LEGACY.     See  Will. 

rule  of  foreign  will ;  comity 16,  174,  183 

residuary  legatee,  appointment  and  bond  of 124,  138 

legatee's  debt  to  decedent 208 

legatee's  ultimate  title  to  legacy 207 

representative  who  is  also  legatee 24S 

rights  of  legatees,  as  to  investment   and  sale 335,  338,  343 

bequests  for  life  with  remainder 342 

specific  bequest ;  exoneration;  how  delivered 381 

claims  of  persons  disappointed  of  legacies 43- 

legatee,  when  liable  for  claims  against  the  estate 445 

/evades,  their  nature  and  incidents. 

this  subject  a  branch  of  the  law  of  wills 45'*^ 

legacy  defined;  executor  should  pay  or  deliver 459 

legacy  to  satisfy  debt 459 

description  of  legatee  and  who  may  be  such 460 

subject-matter  of  legacies;  specific  distinguished  from  gei  eral     .     .     461 

whether  a  residuary  bequest  can  be  deemed  specific 4^- 

bequests  for  illegal  and  immoral  purposes  void ;  superstitious  uses, 

etc 4(^3 

bequests  to  charitable  uses;  statute  of  Elizabeth 4^4 

bequest  void  for  uncertainty 4<^'5 


742  INDEX. 

LEGACY — continued.  Section 

where  principal  or  income  is  locked  up  too  long 465 

restraints  under  statute  of  mortmain 465 

legacies  absolute  or  conditional,  vested  or  contingent 466 

lapsed  legacies,  general  rule 467 

cumulative  legacies ;  repetition  or  substitution  of  legacies    ....     468 

satisfaction  of  debt  or  portion  by  legacy 469 

release  of  debts  by  legacies 470 

ademption  of  legacies 47' 

trustees  under  a  will ;  duties  of  trustee;  appointment 472 

equity  and   probate  jurisdiction ;  bill  of  interpleader   for  construc- 
tion   472,  473 

construction  of  wills,  legacies,  etc 474 

doubtful  points  settled  by  agreement  of  all  parties  concerned  .     .     .     475 
paymefit  a>id  satisfaction  of  legacies. 
payment,  etc.,  of  legacies  ;  all  valid  legal  claims  take  precedence  .       445,  476 

executor's  bond  of  indemnity  from  legatees 477 

legacies  usually  payable  within  a  year  from  testator's  death      .     .     .     478 

when  legatee's  right  vests 479 

rule  as  to  annuitants,  beneficiaries  for  life,  etc 479 

interest  and  produce  of  specific  legacies 480 

interest  on  general  legacies 481 

special  instances  ;   widow,  children,  etc 482 

to  whom  legacies  should  be  paid ;  deceased  legatees 483 

payment  of  legacy  to  infants,  insane  persons,  etc 483 

payment,  as  to  absentees,  persons  not  known,  etc 484,  494 

payment  of  legacies  to  testamentary  trustees 485 

deUvery  of  specific  legacies ;  legatee's  right  to  select,  etc 486 

method  of  paying  general  legacies;  currency  ;  deductions,  etc.  .     .     .     487 

assent  of  executor'to  a  legacy 488 

legatee's  assent  to  the  legacy ;  election 489 

abatement  of  legacies  in  case  of  deficient   assets ;   relative  rank,  etc.     490 

personalty  the  primary  fund ;  exceptions 490a 

refunding  of  legacies  after  their  payment 491 

change  from  representative  to  other  capacity 49i« 

sale  of  real  estate  to  pay  legacy 511,  514 

See  Real  Esiatf.. 

bill  for  account,  etc 521,  522 

See  AccoiN'TiNG. 

LETTERS, 

testamentary  or  of  administration 52 

See  Administrators;  Executors;  Aitoin'tment. 
of  deceased,  whether  assets 205 

LIABILITY.     See  Admin  1.STRATI0N Tf><i, et seq . 

LICENSE.     See  Real  Estate 5 '3-5 '7 

LIEN, 

upon  chattels, 203 


INDEX. 


743 


LlE-N—conhnued,  S^^,i^„ 

on  assets;  not  created  for  creditor's  advantage 2^7 

but  for  representative's  own  immunity 257-260 

discharge  of,  by  representative ^i3 

claimants  against  estate  having  security ^-jo 

right  of  representative  to  retain  for  debt  due  liim ^-jcj 

LIFE  INTEREST, 479 

LIMITATIONS, 

to  probate  of  will 56,  69 

as  to  dispensing  with  inventory 231,390 

transactions  barred  by  lapse  of  time 268/^ 

general  and  special  statutes  as  to  administration 258,  389 

special  statute;  as  to  presenting  claims,  etc 418-420 

lapse  of  time,  effect  upon  accounting ^^^ 

LOCKS, 

power  of  representative  to  open,  etc 272 

M. 

MAINTENANCE.     See  Accounting;  Widow. 

MANDAMUS.     See  Courts. 

MARRIAGE, 

suits  for  annulling ;  representative  not  a  proper  party 266 

MARRIED  WOMEN, 

as  executors 32 

See  Widow;  Wife. 

MORTGAGE, 

of  chattels  as  to  assets 203,  349 

of  real  estate  as  to  assets 214,  512(2 

investments  in 323,  324 

sales  of 258,  352,  362 

rule  as  to  exonerating  real  estate  by  the  personal 430,  512 

judicial  license  to  mortgage 516 

statute  mortgages,  etc., S^3~S^7 

N. 

NOTES,  NEGOTIABLE 202 

running  to  executor  or  administrator 258 

suits  by  or  against  representative  as  to        293,  296,  398a,  411 

See  Assets. 

P. 

PARTNERSHIP.     See  Assets 325,  326,  379 

partners  as  executors        32 

PAYMENT.     See  Claims;  Dlstribution  ;  Legacies,      .     .    yia,  417  e/  se^. 

PERSONAL  PROPERTY, 

various  kinds  enumerated 198  et  seq. 

See  Assets. 


744  INDEX. 

Section 

PEW       287 

PLEDGE, 

as  to  assets 203 

rights  of  personal  representative 305,  306 

power  to  pledge  personal  assets 349-35- 

claimants  against  estate  having  security 430 

See  Claims. 

POWER, 

under  will  exercised 49,  222,  347,  511 

PRIORITY.     See  Claims 425-428,451,476 

PROBATE.     See  Courts. 

of  the  will        17,  53  <•/ j-<rr/. 

duty  of  producing  will ;  fundamental  importance  of  determining  tes- 
tacy or  intestacy 53 

procedure  against   persons    suspected  of   secreting,   destroying,   etc., 

the  will 54 

death  of  testator  ;  its  effect  upon  will 55 

how  soon  after  death  should  will  be  presented  for  probate  ....       56 
testamentary  papers  ineffectual  until  after  proper  probate;  exceptions       58 

probate  relates  back 58 

what  testamentary  papers  require  probate;  wills  of  real  and  personal 

property 59 

testamentary  papers ;  various  kinds  stated;  ^vills,  codicils,  etc.      .     .       60 

secret  wills  ;  extraneous  documents  referred  to 61 

instruments  which  do  not  purport  to  be  testamentary       62 

modern  statutes  correct  laxity,  by  requiring  attestation  to  all  wills  63 

by  whom  the  will  should  be  propounded  for  probate 64 

petition  and  proceedings  for  probate 65 

probate  in  common  form  ;  non-contentious  business 65-6S 

probate  in  solemn  form 65,  69,  70 

contest  over  conflicting  testamentary  papers 71 

agreement  of  parties  in  interest  to  conform  to  invalid  will    ....       72 
proof  needful  to  establish  will ;  proceedings  at  the  hearing  for  pro- 
bate    73 

essentials  of  proof  detailed 74 

instrument  to  be  in  writing  and  signed  l)y  testator 74<  75 

publication,  so-called,  by  the  testator 75 

proof  by  subscribing  witnesses 76 

mode  of  attestation  by  witnesses 77 

proof  of  attestation  clause 78 

proof  of  suitable  testamentary  condition  on  the  testator's  part.  .       79 

suitable  testamentary  condition  as  respects  legal  capacity     ....       80 

proof  of  will;  te.stimony  at  hearing 81 

revocation  or  alteration  of  wills ;  codicils  ;  new  wills 82 

rule  of  escrow  not  applicable  to  wills 83 

lost  wills;   republication  of  will ;  informal  alterations 84 

probate  in  whole  or  in  part 85 


INDEX. 


745 


rROBATE—contmiHuf,  <iecuon 

probate  in  fac-simile  or  by  translation 86 

probate  of  two  or  more  testamentary  papers  ;  grant  to  executors,  87 

decree  of  probate  entered  ;  public  custody  of  the  will 88 

nuncupative  wills  and  their  probate 89 

no  injunction;   effect  of  probate 89^ 

judge  of,  as  administrator 11  • 

PROPERTY.     See  Assets. 

PURCHASE.     See  Assets 358,363 

R. 

REAL  ESTATE, 

whether  locality  may  confer  jurisdiction 27,  154 

See  Conflict  ok  Laws. 

whether  will  of  should  be  probated 59 

intermeddling  with 191 

descends  to  heirs ;   not  assets  e.\cept  for  deficiency 5,  212 

executor  or  administrator  has  no  inherent  authority  as  to  real  estate      213 

rule  of  assets  as  to  mortgagor  or  mortgagee 214,  5i2rt 

as  to  lands  set  off  on  execution 215 

rents,  profits,  and  income  of  real  estate;  nile  of  assets 2t6 

legal  character  of  property,  real  or  personal,  fixed  at  owner's  death  .  217 
rule  of  equitable  conversion ;  real  into  personal,  or  personal  into  real  2 1 7 
character  of  property  at  owner's  death  ;  instances;  contract  to  sell    .     218 

land  damages;  fire  insurance  money,  etc 218 

border  line  of  real  and  personal 225-227 

representative's  title  atid  authority  in  general 509  et  seq. 

no  inherent  authority  or  title  as  to  decedent's  real  estate  212,  509 

actions  relating  to  real  estate 284-286 

whether  the  executor  or  administrator  may  lease 353>  5^9 

as  to  setting  aside  conveyance  by  deceased 509 

rule  where  representative  collects  rents,  manages,  etc 510 

power  to  sell  lands ;  sale  to  pay  debts,  legacies,  etc. ;  equity  rules  .  511 
exoneration  of  real  estate  by  the  personal ;  whether  mortgages  are  to 

be  paid  off,  etc 430,  512 

equity  rule  as  to  marshalling  assets ...512 

dealing  with  mortgages 512a 

charges  and  allowances  ;  reimbursement,  etc 5'-^.  539 

statute  sales  or  mortgages  under  judicial  license 513^^^^^. 

modern  statutes  permitting  sales  under  a  judicial  license  ....  513 
legislative  provisions  as  to  a  sale;  essentials  of  purchaser's  title  .     .     514 

principal  and  ancillary  jurisdictions 5 '5*^ 

judicial  license  to  mortgage  for  certain  purposes 516 

levy  on  land  of  execution  obtained  again.st  the  representative  .     .     .     517 

intermeddler,  v^-hether  an  executor  dc  sou  tort 19' 

actions  founded  in  wrong  done  to  land 284 

upon  covenants  real,  etc --"^5 


746  INDEX. 

REAL  ESTATE — continued.  Section 

distraining,  etc.,  for  rent  in  arrears 301 

taking  land  in  payment  of  debt 310 

investment  in 323,  324 

representative's  liability  on  covenants,  concerning 377 

survival  of  actions  for  damage  to  real  estate 374 

distribution  of  surplus  where  real  estate  has  been  sold  to  pay  debts  .     505 

REASONABLE  PARTS.     See  Distribution 9,  497 

RELEASE, 

of  claims 388 

of  debt  by  legacy 470 

REMAINDER 224,  303,  342 

REMEDIES.     See  Actions. 

REMOVAL, 

of  executor  or  administrator 134,  531 

RENT.     See  Lease;  Real  Estate. 

REPLEVIN.     See  Actions. 

REPRESENTATIVE,  PERSONAL.     See  Admin lstration. 

RESIDENCE.     See  Domicile. 

RESIGNATION 156,  531 

RETAINER.     See  Lien. 

REVOCATION %z,  \i,Q  et  seq. 

See  Ad.mimstkation  ;  Ari'oiN  iment. 

S. 

SAFE  DEPOSIT  COMPANY 542«. 

SALE, 

of  assets 322,  327,  339  et  seq. 

See  Assets. 

of  real  estate 5ii>5i3 

See  Real  Estate. 

SECURITY, 203,  305,  306,  430 

SET-OFF, 

representative's  right 5oS«. 

See  Lien. 

SETTLEMENT.     See  Accounting 527,  528 

SEVERANCE 227<7 

STOCK.     See  Assets. 

vote  upon,  and  liability  for 319,380 

SUCCESSION, 

in  civil  law 6,  7 

SURETY.     See  Bonds. 
SURVIVAL, 

of  actions  by  or  against  estate 277,  366 

See  Actions. 

T. 
TAX.     See  Assessments. 

preference  of 4  26-4  28 


INDEX.  747 

TESTACY.     See  Administration  ;  Executors;  Wills.  Section 

TITLE, 

to  personal  property  vests  in  executor  or  administrator  .      194,  238  et  seq. 

TORT.     See  Actions;  Clai.ms;  In ter.meddling. 

TRADE, 

carrying  on,  with  assets 325,  326,  446</ 

closing  out  business 3-5.  345 

TRUSTEE, 

under  will  also  named  as  uxecutor 46 

trust  of  decedent  to  be  closed,  etc 244,  245 

case  where  guardian  is  trustee 247 

where  executor  acts  as  trustee 247a 

investment  rule 337 

testamentary  trustees  under  a  will 472,  485 

TRUST  PROPERTY, 

held  by  decedent,  ear-marks,  etc 205 

U. 

USURY.     See  Intere.st. 

W. 

WASTE.     See  Action.s  ;  Assets 382-384 

WIDOW.     See  Wife. 

insurance,  etc.,  for 211 

as  to  funeral 422 

allowance  to,  under  modern  statute 448 

whether  confined  to  cases  of  distress 449 

maintenance  for  a  particular  period  sometimes  specified 450 

precedence  over  other  claims;  whether  independent  of  distribution. 

etc 451 

effect  of  decedent's  insolvency  upon  this  allowance 451 

decree  of  allowance,  etc.,  how  enforced 452 

allowance  how  barred 453 

effect  of  widow's  death  or  re-marriage  before  grant 454 

allowance  to  minor  children 455 

specific  articles  of  personalty  allowed ;  exempt  chattels,  etc.     .     .     .  456 

use  of  dwelling-house ;  widow's  quarantine 457 

election  to  take  against  husband's  will 457" 

ancient  doctrine  of  reasonable  parts 9,  497 

See  Interest. 

WIFE, 

deceased,  husband's  right  to  administer 98 

will  of 98 

surviving,  administration  upon  husband's  estate      ....     99,  106,  126 

death  of,  pending  settlement  of  spouse's  estate 130 

marriage  of  sole  executrix  or  administratrix 154 

widow,  whether  deemed  intermeddler 193 


748  INDEX. 


\\"  I FE — continued , 


Section 

paraphernalia,  separate  property,  etc.,  do  not   enter  into  administra- 
tion   447 

surviving,  interest  in  residue  of  deceased  liusband's  personal  estate     9,  497 
See  Married  Women. 
WILL, 

whether  without  e.xecutor ., 

devise,  bequest,  and  legacy  distinguished 4 

whether  operating  on  property  afterwards  acquiixtl 4 

whether   of  real   and    personal   property   distinguished  as   of    right         S 

modern  statute 3 

affected  by  doctrine  of  reasonable  parts a 

foreign;  rules  of  comity 17 

death  of  testator,  its  effect  upon rr 

of  real  as  contrasted  with  personal  jiroptrty 59.  ?(> 

attestation  of;-  modern  statutes,  etc 63,  74,  76,  78 

probate  of.     See  Probate. 

invalid  will  sustained  by  agreement 72 

testamentary  capacity,  etc ^9,  80 

revocation  and  alteration;  codicils;  new  wills 82 

rule  of  escrow  not  applicable 83 

lost  wills  ;  republication  ;  alterations,  etc •  .     .       84 

letters  te.stamentary  issued  upon  probate 87 

public  custody  of  probated  will 88 

nuncupative  wills  and  their  probate 89 

foreign  and  domestic  probate,  etc 1(9-1 71 

case  of  partial  intestacy 2i;o 

directions  of,  as  to  investment n-yr 

authority  to  sell  personal  assets  under 347 

legacies  under.     See  Legacies. 

election  of  widow  under 


construction,  to  remove  doubts 
WITNESSES.     See  Probate;  Will. 


4S7a 
473 


ADDENDA. 


New  cases  noted  while   this   \olutne  in  its  third  edition  was 
passing  through  the  press  :  — 

§  2}(j,  p.  34.     See  Hodges  v.  Kimball,  (U.  S.  App.)  91  Fed.  K.  845. 

§  33'  P-  47-     ^'te  Kidd  v.  Bates,  120  Ala.  79. 

§§  42,  182.      See  Wiiitelegg  AV,  (1899)  P.  267. 

§  91,  p.  121.      1 'resumption  of  death  giving  jurisdiction.      105  Wis.  464. 

§  92,  p.  122.     See  Thormann  z'.  Frame,  176  U.  S.  350.  * 

§  94,  p.  124.  As  to  appointment  within  thirty  days,  see  Mowry  z'.  Latham,  20 
R.  I.  786. 

§  loi,  p.  132.     As  to  wife's  misconduct  dining  marriage,  see  124  Cal.  688. 

§  107,  p.  142.     See  also  Mowry  v.  Latham,  20  R.  L  786. 

§  113,  p.  147.  Stranger  appointed  by  consent  of  the  parties  interested.  Pot- 
ter's Estate,  (1899)  P-  -65- 

§  123,  p.  167.     See  Penn  v.  Fogler,  182  111.  76. 

§  124,  p.  168.  Non-residence  of  such  legatee,  does  not  disqualify.  Fulgham 
v.  Fulgham,  119  Ala.  403. 

§  134,  p.  183.     Cite  Bolton's  Estate,  (1S99)  P.  186. 

§  142,  p.  201.  A  probate  bond  is  fatally  defective  which  names  no  obligee. 
Tidball  v.  Young,  58  Neb.  261. 

§  146,  p.  204.  See  68  N.  H.  51 1  ;  182  111.  390 ;  108  (Ja.  430.  .\!1  moneys  re- 
ceived under  color  of  official  authority  are  covered  by  the  bond.  State  z'.  "S'oung, 
125  N.  C.  296.  Admission  being  made  of  the  sum  due,  a  formal  decree  of  the 
amount  is  unnecessary.  Judge  v.  Sulloway,  68  N.  H.  511.  And  sureties  cannot 
collaterally  attack.     lb. 

§  146,  p.  206.     See  McKim  7:  Haley,  173  Mass.  112  ;   20  R.  I.  592  ;   21  R.  I.  273. 

§  157,  p.  225.      See  Lunsford  v.  Lunsford,  122  Ala.  242. 

§  160,  p.  227.     See  Mowry  v.  Latham,  20  R.  I.  786. 

§  170,  p.  240.     See  Hoysradt  7:  Gas  Co.,  194  Penn.  St.  251. 

§  178,  p.  254.  Local  mortgage  indebtedness  voluntarily  paid  to  a  foreign  ex- 
ecutor.    76  Minn.  216. 

§  208,  p.  292.  The  bond  covers  liabihty  for  such  debt.  Judge  r-.  Sulloway. 
68  N.  H.  511. 

§  214,  p.  300.     See  175  Mass.  213. 

§  223,  p.  310.  Cite  McCormick  z'.  Stephany,  57  N.  J.  Eq.  257.  So,  too,  with 
an  option  incidental  to.  a  lease,     lb. 

§  236,  p.  328.     See  Cronshaw  ».  Cronshaw,  21  R.  I.  54. 

§  256,  p.  348.     Cite  108  Iowa,  651. 

§§  256,  544.     Cite  118  Mich.  678. 

v^!  273,  p.  365.     Cite  Harris  t.  Orr.  .)6  \V.  \n.  261. 

749 


750  ADDENDA. 

§  3'5'  P-  4°'-     ^'te  Harris  v.  Orr,  46  \V.  Va.  261. 

§  322,  p.  409.     Cite  73  Minn.  244. 

§  347,  p.  434.  As  to  authorizing  the  representative  "with  A's  con.sent,"  see 
Gulick  V.  (jriswold,  i(jo  N.  \'.  399. 

§  349>  P-  43^-     ^i't-'  Henimy  t.  Hawkins,  102  Wis.  56. 

§  38a^p.  474.     See  75  Minn.  138. 

§  385,  p.  477.  Estate  not  liable  for  the  representative's  own  tort,  where  no 
pecuniary  advantage  enures  therefrom.     Carr  v.  Tate,  107  Ga.  237. 

§  398/^,  p.  495.  Injunction,  etc.,  not  favored  where  simple  probate  proceedings 
may  afford  relief.     175  Mass.  199. 

§  414,  p.  526.     See  Powell  v.  Foster,  71  Vt.  160. 

§  419,  p.  532.     Statute  runs,  even  though  inventory  be  not  filed.     1 1  7  Mich.  602. 

§  420,  p.  534.     Presentation  of  claim  by  bringing  a  suit.     1 19  Ala.  235. 

§  428,  p.  550.     As  to  special  claim  for  back  taxes,  see  152  Ind.  186. 

§  430,  p.  555.     Cite  61  Ohio  St.  146. 

§  43i>  P-  559-  As  to  family  services,  gratuitous  or  otherwise,  see  106  Ga.  513 ; 
58  Neb.  268;  46  W.  Va.  261. 

§  439,  p.  567.     See  Rhoades  AV,  (1899)  2  Q.  B.  347. 

§  476,  p.  606.  Annuity  to  widow  under  an  antenuptial  settlement  precedes 
legacies.     Pitkin  v.  Peet,  108  Iowa,  480. 

§  492a,  p.  627.  Where  one's  indebtedness  to  the  estate  equals  or  exceeds  the 
distributive  share,  he  is  entitled  to  nothing;  but  probate  judgment  does  not  lie 
for  excess  of  debt.  Caldwell  v.  Caldwell,  121  Ala.  598.  And  a  widow's  allow- 
ance exhausting  the  assets,  widow  or  young  children  can  claim  nothing  by  way 
of  distribution.      107  Ga.  108,  450. 

§  509,  p.  647.  Nor  has  the  widow  any  such  inherent  authority.  Williams  v. 
William.s,  118  Mich.  477. 

§  520,  p.  664.  See  Dulaney  v.  Smith,  97  Va.  130,  as  to  bill  of  residuary  lega- 
tees against  others  fraudulently  misappropriating  with  the  executor's  collusion. 

§  528,  p.  683.  Citation  on  a  final  settlement  of  account  cannot  serve  for  con- 
firming a  sale  of  real  estate  likewise.     Washington  ?•.  Bogart,  119  Ala.  377. 

§  538,  p.  694.  For  delay  in  settlement,  resulting  in  no  loss  to  the  heirs,  inter- 
est on  the  balance  is  sufficient  indemnity.     Armstrong's  Estate,  125  Cal.  603. 

§  540,  p.  698.  Release  from  distributee  prevents  the  court  from  surcharging. 
192  Penn.  St.  531. 

§  541,  p.  699.  Representative  should  be  duly  credited,  where  he  erroneously 
charged  himself.     Arendale  v.  .Smith,  107  Ga.  494. 

§  544,  p.  705.  Not  liable  for  fees  of  counsel  employed  by  a  contesting  legatee. 
Atkinson  v.  May,  57  Neb.  137.  Allowance  for  bill  of  interpleader  on  legal  ad- 
vice. 71  Vt.  160.  Disallowance  as  to  legal  services,  where  a  sheriff  or  constable 
might  have  sufficed.     lb.     Cite  118  Mich.  678. 

§  545'  P-  708.  Special  allowance  for  proper  travelling  expenses.  147  Mo.  319. 
Compen.sation  allowed.  192  Penn.  St.  289;  147  Mo.  319.  Disallowed.  76 
Minn.  132. 

§  546,  p.  713.     Cite  Runyon's  Estate,  125  Cal.  195. 


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